MVM

National Labor Relations Board - Administrative Judge Opinions

Sep 20, 2010

05-RC-016383 (N.L.R.B. Sep. 20, 2010)

JD–55–10
Vienna, VA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MVM, Inc.
Employer
and Case 5-RC-16383
UNITED SECURITY AND POLICE OFFICERS
OF AMERICA (USPOA)
Petitioner
and
INTERNATIONAL UNION, SECURITY, POLICE AND FIRE
PROFESSIONALS OF AMERICA (SPFPA)
Intervenor
Gregory R. Sharma-Holt, Esq., for the Petitioner.
Scott A. Brooks, Esq., for the Intervenor.
Anthony L. Sims, Labor Relations Manager, for the Employer.
ADMINISTRATIVE LAW JUDGE’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
BRUCE D. ROSENSTEIN, Administrative Law Judge. Pursuant to a petition filed on
November 3, 20091 and a Stipulated Election Agreement entered into by the parties and
approved on November 19, a mail-ballot election was conducted with the ballots being mailed to
the eligible voters on Tuesday, June 29, 2010.2 The ballots were commingled and counted on
Tuesday, July 20, 2010, in the below described unit of employees.
INCLUDED: All full-time and regular part-time security officers employed by the
Employer and assigned to the following locations of the National Institutes of
Health operations: Bethesda, Poolesville, Gaithersburg, Rockville, and
Baltimore, Maryland, pursuant to its current and follow-on service contracts with
the government for the provision of security services at said facilities.

1 All dates are in 2009 unless otherwise indicated.
2 A pending unfair labor practice charge filed by the Intervenor blocked the initial scheduling
of an election. By letter dated March 22, 2010, the Regional Director dismissed the charge in
case 5-CB-10763.
JD–55–10
5
10
15
20
25
30
35
40
45
50
2
EXCLUDED: All office and clerical employees, managers, professional
employees, temporary employees, substitute employees, non security
employees, and supervisors as defined in the Act.
The tally of ballots, which was made available to the parties showed:
Approximate number of eligible voters 373
Void ballots 15
Votes cast for Petitioner 153
Votes cast for Intervenor 55
Votes cast against participating labor organization 4
Valid votes counted 212
Challenged Ballots 21
Valid votes counted plus challenged ballots 233
Challenges were not sufficient in number to affect the results of the election.
On July 27, 2010, the Intervenor filed timely objections to conduct affecting the results of
the election. On August 11, 2010, the Regional Director issued a Report on Objections and
Notice of Hearing finding that substantial and material issues of fact have been raised regarding
Objections 5 and 6 that can best be resolved by record testimony (Bd Exh. 1(j)). Accordingly,
the Regional Director determined that a hearing should be held regarding those Objections.
I conducted a hearing on the below noted objections in Washington D.C. on August 25,
2010. On the entire record, I make the following recommendations.3
THE OBJECTIONS
Objection 5
The Intervenor alleges that approximately 85 percent of the bargaining unit members
were born in Africa and that the Petitioner campaigned by making statements and promises that
appealed to voters born in Africa. The Intevenor asserts that the Petitioner made a promise
during the course of the election campaign that if the Petitioner was elected, the local executive
board would be comprised of members who were from Africa.
Facts
Security Officer Lunette Griffin, who testified on behalf of the Intervenor regarding this
issue, overheard a conversation in November 2009 between co-worker Adedayo Adewoley4 and
several employees (Wilbert Tebo, Fidelis Njinkens and Uzoma). Adewoley told the assembled
employees that he wanted a local executive board comprised of African born black employees
and one Caucasian rather than the present executive board that has a number of American

3 The undersigned will consider the alleged interference that occurred during the critical
period, which begins on and includes the date of the filing of the petition and extends through
the election.
4 According to Griffin, Adewoley came to her in November 2009 just after the Intervenor had
kicked him off the executive board and he stated that the next executive board should be all
African and one Caucasian.
JD–55–10
5
10
15
20
25
30
35
40
45
50
3
born black employees. In December 2009, Griffin overheard another conversation that occurred
in Building 38 near the supervisors’ area wherein Adewoley again expressed his preference to
the above noted employees for a local executive board mainly comprised of African born black
employees.5
Griffin further testified that in July 2010, prior to the ballot count, a number of bargaining
unit employees accused her of making national origin and racial statements and they did not
appreciate her causing problems by talking about these issues during the election campaign.
Additionally, Griffin noted that approcimately13-17 employees who worked in the Gateway unit
building also accused her of making statements about national origin and race during the July
2010 time period.
Security Officer Jerry Bell testified that a majority of the bargaining unit employees were
dissatisfied with the representation that had been provided by the Intervenor and wanted them
voted out as their collective-bargaining representative. He further noted that he was not aware
of any racial issues that occurred during the critical period and only learned about the national
origin and racial allegations after the Intervenor filed its Objections to the election.
Security Officer Anderson Sibedwo testified that he had an argument with Griffin several
days before the ballot count due to her not representing him one year ago regarding a personal
issue at a time that she served as vice-president of the Intervenor.
Assane Faye, Executive Director and National President of the Petitioner, testified that
local unions are permitted to elect an executive board comprised of bargaining unit members in
accordance with its by-laws (Pet. Exh. 1). In this regard, Article 7, Section 5.2, requires all local
elections to be by secret ballot.
Discussion
The Board applies an objective test in evaluating party conduct during an elections
critical period, i.e. whether the conduct has the “tendency to interfere with the employees’
freedom of choice” and “could well have affected the outcome of the election.” Cambridge Tool
& Mfg. Co., 316 NLRB 716 (1995).
In Sewell Mfg. Co., 138 NLRB 66, 71-72 (1962), the Board stated that it would not set
aside an election on the basis of racial appeals where a party limits itself to truthfully setting
forth another party’s position on matters of racial interest and “does not deliberately seek to
overstress and exacerbate racial feelings by irrelevant, inflammatory appeals.” Cases since
Sewell have shown that this “rule . . . is applicable only in those circumstances where it is
determined that the appeals or arguments can have no purpose except to inflame the racial
feelings of all voters in the election.”
In NLRB v. Schapiro & Whitehouse, Inc., 356 F.2d 675 (4th Cir. 1966), the Fourth circuit
applied Sewell to union propaganda. The court found that campaign literature distributed by a
union on two occasions shortly before a consent election which urged employees, most of
whom were Black, to consider and act on race as a factor in the election was so inflammatory
as to invalidate the election. In doing so, the court specifically approved the Sewell standards.

5 In the December 2009 conversation, according to Griffin, Adewoley informed the group of
employees that Griffin was a liar, that she had him kicked off the executive board, and the next
board should have predominantly all African and one Caucasian member.
JD–55–10
5
10
15
20
25
30
35
40
45
50
4
As in the case of employer inflammatory racial appeals (for example, Allen-Morrison
Sign Co., 138 NLRB 73 (1962), so in union inflammatory appeals, factual distinctions may call
for a different result. Thus, while the theme in Archer Laundry Co., 150 NLRB 1427 (1965), was
admittedly based on a racial issue, distinguishing implications were found. Instead of racial
appeals designed to engender race hatred, the appeals in Archer were regarded as designed to
engender “racial self-consciousness.”6 See also, Aristocrat Linen Supply Co., 150 NLRB 1448
(1965); The Coca-Cola Bottling Co. of Memphis, 273 NLRB 444; and Pacific Micronesia
Corporation d/b/a Dai-Ichi Hotel Saipan Beach, 326 NLRB 458 (1998).
Under these circumstances, and particularly noting that the statements and promises
made in the subject case were not appeals designed to engender race hatred, I find that no
objectionable conduct occurred. Moreover, Griffin’s testimony did not establish that the
Petitioner promised that if elected the local executive board would be comprised of members
from Africa. Rather, Griffin testified that an employee who supported the Petitioner expressed
to several co-workers that he wanted or preferred an executive board of members from Africa.
Further, the record testimony reveals that as an underlying current running throughout the
critical period was animosity directed toward the Intervenor for not adequately representing the
interests of the collective-bargaining unit. I also note the discord that existed between certain
employees in the bargaining unit and Griffin that apparently led to her removal as Vice President
of the Intervenor just after the ballot count. In my opinion, this is what led to some of the
statements that were made by bargaining unit employees, none of whom were officers or
officials of the Petitioner, regarding cultural issues including certain voters’ national origin.
With respect to the Intervenors assertion that statements were made to voters that if the
Petitioner was elected the local executive board would be comprised of members who were
from Africa, I find for the following reasons that no objectionable conduct has been established.
In this regard, I find bargaining unit employees expressions of who they would prefer on a local
executive board not to be racially motivated and that members’ of Petitioner’s executive board
must be duly elected by the membership and are not appointed by the leadership.7 Likewise,
the Board found in Tio Pepe, Inc., 263 NLRB 1165 (1982), relying on the holding in NLRB v.
Savair Mfg. Co., 414 U.S. 270, 278-79 (1973), that when offers of financial benefit are made in
exchange for union support, a union engages in objectionable conduct requiring the results of
an election to be set aside. Here, however, even assuming that the Petitioner made statements
to voters that the local executive board would be comprised of members who were from Africa,
no offers of financial benefit were undertaken and the selection of individuals to the executive
board is made under the auspices of an election by secret ballot.
For these reasons, I find that the Intervenor has not conclusively established the
underpinnings of Objection 5, and recommend that it be overruled.
Objection 6

6 In NLRB v. Sumter Plywood, 535 F.2d 917 (5th Cir. 1977), the Court held that some degree
of “consciousness raising” was acceptable for organizing among historically economically
disadvantaged ethnic groups and noted that because the election was 156-77, the improprieties
alleged were insufficient to show a material affect on the election.
7 It stands to reason that if 85 percent of the unit was comprised of employees born in
Africa, and the Petitioner won the election, there is a strong likelihood that the executive board
would be comprised of members who were from Africa.
JD–55–10
5
10
15
20
25
30
35
40
45
50
5
The Intervenor alleges that the Petitioner collected voters’ mail-ballots for delivery to the
Regional Office.
Facts
Hope McKnight, a three year security officer and member of the collective-bargaining
unit,8 is assigned to the NIH Bethesda, Maryland, complex where she regularly monitors radio
transmissions, checks employee ID cards, and provides protection and security for the complex.

McKnight testified that sometime in April or May 2009, while working a weekend shift,
co-worker Bell approached her and inquired whether she had received a ballot from the Board
for the upcoming election. McKnight replied that she had received the ballot but did not
particularly know how to fill it out and requested Bell to assist her in doing so. McKnight testified
that Bell suggested that she check the middle box.9 According to McKnight, after signing the
outside of the ballot envelope, she gave it to Bell who sealed the envelope. She then observed
Bell giving the envelope to someone in the inner patrol booth. McKnight does not know what
happened to the ballot but acknowledged that she did not observe Bell collecting any other
ballots from prospective voters.
Bell is a seven year security officer and member of the collective-bargaining unit who
served as an observer for the Petitioner at the ballot count on July 20, 2010.
Bell testified that he spoke with McKnight over a weekend that they both worked prior to
the July 20, 2010 ballot count. Upon arriving at work to commence her Saturday shift, McKnight
asked Bell how to fill out the ballot which she intended to do later that evening. On Sunday,
McKnight arrived at work with her ballot filled out, sealed, and signed. Bell testified that
McKnight requested that he take her signed ballot after he mentioned that he was going to the
mailbox to mail some of his bills. Bell then went directly to the street corner where he deposited
his bills and the ballot in the USPS mailbox.
Griffin testified that in July 2010, while in the cafeteria, she heard co-worker Fidelis
Kemngang ask Security Officer Andre Kamleu whether he filled out the ballot for the upcoming
election and if he had the ballot with him. Kamleu replied that he had the ballot with him and
gave it to Kemngang. Griffin then observed Kemngang take the ballot and deposit it in the
USPS mailbox just outside the facility. Griffin further testified that she heard that other co-
workers had given their ballots to fellow security officers but she could not identify how many
times this occurred or how many ballots were involved. McKnight admitted that she did not
observe any other employees collecting ballots and had no personal knowledge if they
occurred.
Discussion
It is well settled that the Board, in conducting elections, must maintain and protect the
integrity and neutrality of its procedures. See, e.g. Family Service Agency, San Francisco, 331
NLRB 571 (2000); Glacier Packing Co., 210 NLRB 571 (1974).
In mail-ballot elections, of course, a Board agent is not present, when the ballots are
marked and returned by mail. For this reason, mail ballots are accompanied by election kits that

8 The Intervenor presently represents the bargaining unit and will remain the exclusive
representative pending the resolution of the subject Objections.
99 Jt. Exh. 1 shows that the first box on the ballot was for the Intervenor while the second
box represented a vote for the Petitioner.
JD–55–10
5
10
15
20
25
30
35
40
45
50
6
clearly specify the precise procedure for casting and returning the ballot. Where such
procedures are not followed, and the mail ballots come into the possession of a party to the
election, the secrecy of the ballot and the integrity of the election process are called into
question.
The Board, in the case of Fessler & Bowman, Inc., 341 NLRB 932 (2004), addressed a
similar issue to the one raised in the subject Objection. The four Board Members that
participated in the case unanimously held that when mail-ballot collection by a party occurs, it
casts doubt on the integrity of the election process and undermines election secrecy.
Accordingly, the Board found that where a party collects or otherwise handles voters’ mail-
ballots, that conduct is objectionable and may be a basis for setting aside the election.
The misconduct in the Fessler & Bowmann case involved the collecting of mail-ballots
for two employees’ who had completed the election kit process. Members Liebman and Walsh
opined that the relevant inquiry is whether the objectionable conduct had a tendency to interfere
with the employees’ freedom of choice and “could well have affected the outcome of the
election.”
In that case, unlike the facts presented here, the two collected mail-ballots could have
numerically affected the election results. Under those circumstances, the case was remanded
to the Regional Director to resolve the issue. In this case, since the record evidence only
establishes that two mail-ballots were collected and even if the votes were changed from the
Intervenor to the Petitioner, it still would not have changed the results of the election.10
For all of the above reasons, I find that the Intervenor has not conclusively established
the allegations in Objection 6, and therefore, I recommend that it be overruled.

10 The facts in the subject case further persuade me that Objection 6 should not be
sustained. In crediting Bell rather than McKnight, and noting that Griffin testified similarly, the
technical collection of the ballot should not be controlling here as they both were immediately
deposited in the mailbox without any evidence of tampering. Bell was a convincing and credible
witness in comparison to McKnight who mistakenly placed her conversation with Bell in April or
May 2009, a period prior to the filing of the representation petition when no ballots were
available. McKnight during the course of her testimony was unsure of when events occurred
and how she obtained the second election ballot. Moreover, as discussed above, the Intervenor
only produced conclusive evidence that two ballots out of 212 valid votes counted were
collected, a number insufficient to impact the results of the election that the Petitioner won with
almost a 3 to 1 margin.
JD–55–10
5
10
15
20
25
30
35
40
45
50
7
Conclusions and Recommendations to the Board
Based on my findings and conclusions above, I recommend that the Board overrule
Objections 5 and 6 and issue a Certification of Representative to the Petitioner.11
Dated, Washington, D.C. September 20, 2010
____________________
Bruce D. Rosenstein
Administrative Law Judge

11 Pursuant to the provisions of Section 102.69 of the Board’s Rules and Regulations, Series
8, as amended, within 14 days from the date of issuance of this Recommended Decision, either
party may file with the Board in Washington D.C. an original and eight copies of exceptions
thereto. Exceptions must be received by the Board in Washington by, October 4, 2010.
Immediately upon the filing of such exceptions, the party filing same shall serve a copy upon the
other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto,
the Board may adopt this Recommended Decision.