NORTH SHORE AMBULANCE AND OXYGEN SERVICE, INC.

National Labor Relations Board - Unpublished Board Decisions

May 3, 2017

29-RC-185400 (N.L.R.B. May. 3, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NORTH SHORE AMBULANCE AND
OXYGEN SERVICE, INC.
Employer
and Case 29-RC-185400
LOCAL 726, INTERNATIONAL UNION
OF JOURNEYMEN AND ALLIED TRADES
Petitioner
ORDER
The Employer’s request for review of the Regional Director’s Decision on Objections
and Certification of Representative is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., May 3, 2017.
Chairman Miscimarra, dissenting:
In this case, my colleagues find that the Employer’s offer of proof regarding Objection 1,
which relates to a Union agent serving as an election observer, was procedurally deficient. See
Board’s Rules and Regulations Sec. 102.69(c)(1)(i). As this case involves the Board’s final rule
on representation case procedures, I reiterate my disagreement with the rule for the reasons
expressed in my and former Member Johnson’s dissenting views to the final rule. 79 Fed. Reg.
74308, at 74430-74460 (Dec. 15, 2014).

1 We agree that the Regional Director properly overruled the Employer’s Objection 1
without a hearing based on the Employer’s deficient offer of proof. Secs. 102.69(a) and
102.69(c)(1)(i) of the Board’s Rules and Regulations; Park Chevrolet-Geo, Inc., 308 NLRB
1010, 1010 fn. 1 (1992). In any event, Objection 1 does not warrant setting aside the election
because, as the Regional Director correctly observed, the mere service of a nonemployee union
official as an election observer is not objectionable misconduct. Longwood Security Services,
Inc., 364 NLRB No. 50 (2016).
As I explained in the dissenting views set forth in the Board’s Election Rule, I believe an
offer of proof “is an informal short-form description of potential evidence,” id. at 74446, which
should “specifically identify[] witnesses who w[ill] provide direct rather than hearsay testimony
to support its objections, specifying which witnesses w[ill] address which objections.” Transcare
New York, Inc., 355 NLRB 326, 327 (2010). I also believe, however, that where a party’s
objection presents uncontroverted facts, it is improper for the Board to refuse to pass on the
merits of the objection merely because it is unaccompanied by an offer of proof.
In Objection 1, the Employer states that “[a]t the Election, the NLRB Board Agent
permitted a Business Agent of [the Union], who is not an employee of [the Employer] to serve as
the Union’s observer.” The Union does not dispute their Business Agent’s presence at the
election. The Employer’s Request for Review provides supplemental information on the
uncontroverted presence of the Union agent observer. Specifically, the Request for Review
asserts that, prior to the election, the Union stated that it would designate an employee of the
Employer to serve as its observer, but then shortly before the election was scheduled to
commence, the Union’s Business Agent advised the Board Agent that he could not find an
employee who was willing to serve as an observer. As a result, the Business Agent requested
and was granted permission to serve as the Union’s election observer. While these specifics
were not submitted to the Regional Director prior to her decision, they merely serve to
corroborate the uncontroverted fact the Regional Director considered in making her decision. By
denying review here, on the procedural ground that the Employer has failed to provide an offer
of proof, the Board disregards the fact that it has before it all of the relevant Objection 1
information that was known to the Regional Director and to the Board agent conducting the
election. It is important for the Board’s resolution of election issues to turn on relevant facts and
the proper application of legal principles, placing substance over form. By insisting on strict
adherence to technical procedures, the majority jeopardizes the integrity of the Board’s election
process. See Global Contact Services, Inc., Case 29-RC-134071 (2015) (not reported in Board
volumes) (Member Miscimarra “believes the Board should avoid an unduly restrictive reading of
timely relevant objections … given the … Board’s responsibility to assure employees the ‘fullest
freedom’ in their exercise of protected rights in Board-conducted elections (Sec. 9(b))”).
Turning to the substance of Objection 1, the Board’s denial of the Employer’s Request
for Review here is consistent with the majority position asserted in Longwood Security Services,
Inc., 364 NLRB No. 50, slip op. at 2 (2016) (“[A]bsent evidence of misconduct, service by a
union official as an observer is not grounds to set aside a representation election”). I disagree
with Longwood, however, for the reasons articulated in my dissenting opinion therein. Id., slip
op. at 5-8 (Member Miscimarra, dissenting). Here, I reassert my dissent in Longwood,
specifically emphasizing that “the mere presence of a[ny] party’s agents in a place employees
must pass in order to vote constitutes objectionable conduct sufficient to set aside an election.”
Id., slip op. at 6 (citing cases). There are few actions more coercive and impairing of free choice
than a union agent positioning him or herself in the polling place as a Board-approved observer,
closely monitoring every single voter mere seconds before he or she marks and casts a ballot. Id.
See also Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981, 993 (D.C. Cir. 2001) (Board
precedent “stand[s] for the proposition that a party”—not just an employer party—“engages in
objectionable conduct sufficient to set aside an election if one of its agents is continually present
in a place where employees have to pass in order to vote”) (emphasis added). In an attempt to
further the goal of ensuring free and fair elections, I would find that the Union Business Agent’s
presence as an observer in this election constitutes objectionable conduct sufficient to set aside
the election.
Accordingly, I respectfully dissent.
PHILIP A. MISCIMARRA, CHAIRMAN