Niagara Wires, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1347 (N.L.R.B. 1978)

NIAGARA WIRES, INC.
Niagara Wires, Inc. and Local Union No. 1965, of the
International Brotherhood of Electrical Workers,
AFL-CIO, Petitioner. Case 12-RC-5257
August 25, 1978
SUPPEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to a second
election held on December 9, 1977,' and the Region-
al Director's report recommending disposition of
same. The Board has reviewed the record in light of
the exceptions and briefs and hereby adopts the Re-
gional Director's findings and recommendations.2
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local Union No. 1965, of
the International Brotherhood of Electrical Workers,
AFL-CIO, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the unit found appropriate
herein for the purposes of collective bargaining with
' The original election was held on March 11, 1977. pursuant to a Stipula-
tion for Certification Upon Consent Election. Thereafter, on November 7.
1977, the Board issued a Decision and Direction of Second Election. The
tally in the second election was: 60 for. and 56 against, the Petitioner There
were no challenged ballots.
2 We agree with the Regional Director's recommendation that the Em-
ployer's Objection I be overruled, based on his findings that the employees
who engaged in electioneering were not agents of the Petitioner and, further,
that they were not electioneering in the polling area or while employees were
standing in line waiting to vote. In adopting this recommendation. however.
we disavow his reliance on the subjective testimony of some voters that.
despite such electionecring. they cast their ballots solely as they personall)
chose.
Additionally, in recommending that the Employer's supplemental objec-
tions be overruled, the Regional Director concluded that the Employer, as
the objecting party, had the "heavy burden" of proving by specific evidence
that the election was unfair. Rather, in cases, as here, involving objections to
the Board's conduct of the election. it is the Board's responsibility to certify
to the validity of its own balloting procedures. See generally Austill Waxed
Paper Company, 169 NLRB 1109 (1968). We agree, however, with the Re-
gional Director's recommendation to overrule the supplemental objections
inasmuch as we find that the facts herein do not suggest any reasonable
possibility of a violation of the integnty of the ballot box. See. e.g., Poli-
mers, Inc. 174 NLRB 282 (1969). where as here, there were no suspicious
traces or affirmative evidence of tampering. This sealed ballot box was in
the possession of the Board agent at all times. That a small portion of the
company attorney's initials may have gotten under the tape is truly de mrn-
imis. Significantly, the Regional Director found 'no discernible evidence
that the tape was in any way removed from the box" in the period between
voting sessions.
respect to rates of pay. wages, hours of employment,
and other terms and conditions of employment:
All production and maintenance employees,
truck drivers, and quality control employees em-
ployed by the Employer at its Highbridge Road
plant in the Quincy, Florida, area, excluding all
office clerical employees, guards, professional
employees, and supervisors as defined in the
Act.
MEMBER MURPHY. dissenting:
Despite indications that the ballot box may have
been tampered with during the period between the
first and second voting sessions, my colleagues refuse
to set aside the election. Due process requires that I
disagree with that determination.
The facts here are not in dispute. The election was
conducted on a split-session basis. The cardboard
ballot box contained a narrow, precut slit opening
(approximately 5 inches long by 1/8 inch wide)
through which the voters inserted their ballots. After
the morning polling session had ended, the Board
agent-in the presence of representatives of the par-
ties-sealed this opening by placing a single strip of
tape over it. Both the Employer's attorney and the
Union's representative, as is customary, initialed the
seal on the box by running their initials across the
tape and slightly beyond on each side of the box. The
Board agent then left the premises with the sealed
box, which remained in his custody the entire time
between the voting sessions.
When the Board agent returned to the polling area
shortly before the afternoon polling session, the rep-
resentatives of the parties were invited to examine
the box before it was opened for further voting. At
that time it was noticed by one of the union represen-
tatives that a part (approximately three-sixteenths to
one-quarter of an inch) of the company attorney's
initials were underneath the tape covering the slit in
the box, rather than over it. There is no explanation
as to how a portion of the company attorney's initials
got below the tape prior to the afternoon voting ses-
sion.
The standard for determining whether to set aside
an election, under circumstances such as this, is set
forth in Austill Waxed Paper Company, 169 NLRB
1109 (1968). There the Board stated:
Under the particular facts of this case, we do
not agree with the Regional Director's conclu-
sion that Employer's Objection 2, which raises
the issue of the ballot box being left unsealed
and unattended for about 2 to 5 minutes, should
be overruled. This objection, which goes to the
very heart of the conduct of an election-main-
taining the integrity of the ballot box-is not, in
237 NLRB No. 218
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our opinion, the proper subject for litigation on
and [sic] ad hoc basis. We do not believe that we
should speculate on whether something did or
did not occur while the ballot box was left whol-
ly unattended. The Board, through its entire his-
tory, has gone to great lengths to establish and
maintain the highest standards possible to avoid
any taint of the balloting process; and where a
situation exists, which, from its very nature,
casts a doubt or cloud over the integrity of the
ballot box itself, the practice has been, without
hesitation, to set aside the election.
The Regional Director speculates as to how a por-
tion of the initials could have gotten under the tape
without the tape being removed.3 Nevertheless, he
cannot, with any certainty, eliminate the possibility
that the tape had been removed and then replaced.
Nor do my colleagues. In the end the Regional Di-
rector and the majority rely, almost exclusively, on
the fact that the ballot box was in the custody of the
Board agent at all times in between voting sessions.
While that fact may tend to reduce the likelihood
that someone tampered, or would be able to tamper,
with the ballot box, it does not, standing alone, re-
move that possibility. Although the ballot box here
was apparently handled in a way as to prevent tam-
pering with it, the fact remains that when it was re-
turned for the afternoon session it was in a condition
such that no one can, with any degree of certainty,
eliminate the "doubt or cloud over the integrity of
the ballot box itself" which then was present and still
persists. In these circumstances, I am unwilling to
speculate what might have caused the tape to be in a
different position from that when it was initialed and
which has cast an aura of taint on the balloting pro-
cess in this election. To me, the mere appearance of
possible impropriety in the balloting process provides
reason enough to find that the objection has merit.
Thus, as I have repeatedly stated, any conduct
which can be construed as impinging upon the integ-
rity of the Board or its processes cannot be counte-
nanced. Like Caesar's wife, the Board and its agents
must be above suspicion.4 In order to insure confi-
dence in the Board's elections, I have found that
elections should be set aside when union campaign
material implied that the Board was prounion,5 when
3Thus, the Regional Director "surmises" that the tape could have been
moved inadvertently while the box was being carried by the Board agent.
But in the end he is constrained to concede that there "are possibly a num-
ber of explanations . . but no way to prose any."
4 George J. London Memorial Hospital, 236 NLRB No. 82 (1978). See mn
dissenting opinion.
The majority's reference in fn. 2 to the incident here as "de minimis" is
like being "a little bit pregnant." The initials were either under the tape or
not; how far under the tape they might be is irrelevant.
5Monmouth Medical Center. 234 NLiRB 328 (1978).
a campaign meeting was being held in the same room
where a Board agent was taking down affidavits with
respect to certain unfair labor practices and when the
agent was introduced to the assembled employees,6
and in another case where a party to an election has
substantially mischaracterized or misused Board
documents. Here the undisputed fact that the initials
were below the tape cannot help but have seriously
impaired-if not destroyed-the confidence in the
Board's election process. The supporters of the losing
choice will always have reason to doubt the integrity
of this election. Consequently, setting aside this elec-
tion is a small price to be paid for maintaining the
confidence of the parties and the employees in the
integrity of our processes.
In affirming the Regional Director's determination
my colleagues rely on Polymers, Inc., 174 NLRB 282
(1969). Without deciding whether I agree with the
result in that case, I note that it is factually different
from the instant proceeding. In that case there was
nothing to indicate that in fact anything might have
happened to the ballot box. All that occurred was a
failure of the Board agent to handle the ballot box in
the most desirable manner possible.8 Here, the ini-
tials were below the tape which affirmatively indi-
cates that "tampering" may have occurred.
Further, in Polymers, supra at 283, the Board noted
that in the circumstances of that case it was "quite
improbable that any tampering with the box would
not have left suspicious traces," implying thereby
that if such suspicious traces had been present the
election might well have been set aside. Here, in fact,
the suspicious circumstances exist. Nevertheless, my
colleagues refuse to set aside the election. But the
Board's own standard for conduct by its agents re-
quires a contrary result:9
The Board in conducting representation elec-
tions must maintain and protect the integrity
and neutrality of its procedures. The commis-
sion of an act by a Board Agent conducting an
election which tends to destroy confidence in
the Board's election process, or which could rea-
sonably be interpreted as impugning the election
Provinciul House, Inc., 221 NLRB 5 (1975) In a related enforcement
proceeding the court agreed with my position and found that the conduct
improperly compromised the Board's neutrality. It thus refused to enforce
the bargaining order or the certification of representative in the representa-
tion proceeding. Provincial House. Inc v. N.L.R.B., 568 F.2d 8 (C.A. 6,
1977).
Forn(o,. Inc., 233 NLRB 61 (1977).
R He did not at all times retain custody of the sealed ballot box and the
blank ballots.
9 Quoted in Provincial House, Inc. v, N.L.R.B., supra, from Athbro Prci-
sion Engineering Corp., 166 NLRB 966 (1967). vacated IUE v. N.L.R.B., 67
LRRM 2361 (1968), 57 LC ' 12,440 (D.D.C. 1968)., acquiesced in 171
Ni.RB 21 (1968). enfd. 423 F.2d 573 (C.A. 1970).
1348
NIAGARA WIRES, INC
standards we seek to maintain, is a sufficient ba-
sis for setting aside the election.
This rule must be applied equally whether the
agent's conduct consists of acts of commission, as in
the cases cited in the footnotes or of omission, as in
the instant proceeding.
At the risk of repeating myself, I must once again
emphasize the extreme importance that all parties to
our proceedings have complete confidence in our in-
tegrity. Without such confidence the mission of the
Board cannot be fully realized. In order to maintain
that confidence there will be circumstances, like
these herein, where the Board must take action sim-
ply to remove the possibility that its processes have
been compromised. My colleagues' failure to take
such action will necessarily make all parties to our
election process suspicious of the Board's resolve in
this area.
Accordingly. I cannot certify that our high stan-
dards for conducting an election have been met in
this situation, and I would therefore set aside the
election and direct another one.
1349