Quest International

National Labor Relations Board - Board Decisions

Mar 20, 2003

338 N.L.R.B. 856 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
Quest International, a Business unit of Indopco, Inc.
and International Brotherhood of Teamsters,
Local 570, AFL–CIO. Case 5–RC–15417
March 20, 2003
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered an objection to an election
held July 18, 2002, and the hearing officer’s report rec-
ommending disposition of it. The election was conducted
pursuant to a Stipulated Election Agreement. The tally of
ballots shows 13 for and 33 against the Union, with 1
challenged ballot, which is not sufficient to affect the
results of the election.
The Board has reviewed the record in light of the ex-
ceptions and brief, and has adopted the hearing officer’s
findings and recommendations only to the extent consis-
tent with this Decision and Certification of Results.
A. The Objection
The Union’s sole objection alleges that “immediately
prior to and during the election, the Employer stationed
security guards and guard dogs on the Employer’s prem-
ises when neither had been so stationed prior to the filing
of the petition for representation.” The hearing officer
recommended that the objection be sustained, that the
election be set aside, and that a second election be con-
ducted. We disagree. For the reasons discussed below,
we overrule the objection and issue a certification of re-
sults.
B. Facts
The representation petition was filed on June 7, 2002
(all dates are 2002 unless otherwise stated).
1. Security
In June, the Employer contracted with a security com-
pany to provide an around-the-clock security guard, ac-
companied at certain times each day by a guard dog, at
the Employer’s Painters Mill Road plant (which operates
around the clock and where most of the unit employees
work) and at the Cronhill Drive warehouse (about 2
miles from the plant). This was the first time in 2 years
that the Employer had used a security guard. The Em-
ployer’s normal security system consists of mounted
cameras inside and outside the plant and a perimeter
fence around the rear of the 7-acre plant property. The
front of the plant property, including the employee park-
ing lot, is not fenced. The record does not describe secu-
rity at the warehouse.
From July 11 through election eve, July 17, an un-
armed, uniformed security guard in a marked car was
stationed around the clock at the front vehicular entrance
to the plant property. The guard patrolled the entire pe-
rimeter of the property, including the parking lot, every
half hour. Additionally, a security dog (a 90–100 pound
Rottweiler) joined the guard every day during plant work
shift changes, from 6–8 a.m. and 3–5 p.m. When the dog
was not patrolling with the guard at these 30-minute in-
tervals during shift changes, it remained inside the secu-
rity vehicle. The guard was permitted inside the plant
only to use the restroom and vending machines; the dog
was never in the plant. Also, once every 8 hours, the
guard drove to the warehouse for a brief patrol. On elec-
tion day, the Employer supplemented the security guard
and dog with an armed offduty police officer, dressed in
the security company’s uniform. The security guards did
not interrogate, confront, or engage in surveillance of
employees. They were not near the polls during the elec-
tion. The Employer discontinued all of these security
measures on the day after the election.
2. The Employer’s campaign
Site Manager Laura Scott sent two letters to employees
about a month before the election, stating, inter alia, that
the risks of collective bargaining were strikes, picket
lines, and standoffs. Scott also conducted weekly em-
ployee meetings during the Union’s organizational cam-
paign. She told the employees that the security guards
were there for their protection, and so that they could feel
comfortable and secure coming to, while at, and leaving
from work. Scott also told the employees that they
should worry about, inter alia, the possibility of strikes
and picketing. She mentioned occasions (not further
specified in the record) where there had been picket line
violence. The Employer conveyed to the employees
through videotapes that there was evidence of violence
on other picket lines. (There are no videotapes in evi-
dence.)
There were no objections to any of the Employer’s
campaign statements or materials.
C. The Hearing Officer’s Report
The hearing officer found that the unprecedented post-
ing of uniformed security guards and security dogs for 10
days before the election was highly likely to cause fear
among the employees. The hearing officer stated that was
particularly true where, as here, the Employer presented
the employees with campaign information linking un-
ionization to strikes, work stoppages, and violence, and
then told the employees that the newly arrived security
guards and dogs were there to provide protection for the
employees, the plant, the Employer’s business activities,
338 NLRB No. 123
QUEST INTERNATIONAL 857
and against possible vandalism in the parking lot. Thus,
the hearing officer found that the employees would rea-
sonably understand the Employer’s message to be that a
vote for unionization was a vote for a workplace charac-
terized by violence, in which guards and dogs would be
necessary to keep the peace. Accordingly, she recom-
mended that the Union’s objection be sustained and that
the election be set aside.1
D. Analysis and Conclusion
The applicable principles have been recently summa-
rized in Safeway, Inc., 338 NLRB 525 (2002):2

‘Representation elections are not lightly set aside.’
NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328
(5th Cir. 1991) (citing NLRB v. Monroe Auto Equip-
ment Co., 470 F.2d 1329, 1333 (5th Cir. 1972), cert.
denied 412 U.S. 928 (1973)). ‘There is a strong pre-
sumption that ballots cast under specific NLRB proce-
dural safeguards reflect the true desires of the employ-
ees.’ NLRB v. Hood Furniture Mfg. Co., supra, 941
F.2d at 328. Accordingly, ‘the burden of proof on par-
ties seeking to have a Board-supervised election set
aside is a ‘heavy one.’ Kux Mfg. Co. v. NLRB, 890 F.2d
804, 808 (6th Cir. 1989) (quoting Harlan #4 Coal Co.
v. NLRB, 490 F.2d 117, 120 (6th Cir.), cert. denied 416
U.S. 986 (1974). The objecting party must show, inter
alia, that the conduct in question affected employees in
the voting unit. Avante at Boca Raton, Inc., 323 NLRB
555, 560 (1997) (overruling employer’s objection
where no evidence unit employees knew of alleged co-
ercive incident). See generally Antioch Rock & Ready
Mix, 327 NLRB 1091, 1092 (1999).

A party’s conduct cannot be the basis for setting aside
the election unless it reasonably tended to interfere with
the employees’ free and uncoerced choice in the election.
Baja’s Place, 268 NLRB 868 (1984).
Applying these principles here, we find, contrary to the
hearing officer, that the Union has failed to carry its bur-
den of establishing that the Employer’s implementation
of the security measures described above had a reason-
able tendency to interfere with the employees’ free and
uncoerced choice in the election.
First, the increased security in question was basically
only one unarmed guard, supplemented during shift
changes by one dog, and on election day by an addi-
tional, armed guard. Second, the guard patrolled the pe-
rimeter of the property only, and entered the plant only to
use the restroom or vending machines. The dog, when it

1 The hearing officer did not cite any precedent supporting her rec-
ommendation.
2 See, e.g., Lockheed Martin Corp., 331 NLRB 852, 854 (2000).
was on the site, remained inside the security vehicle ex-
cept when it was accompanying the guard on perimeter
patrol, and it never entered the plant. Also, the guards
and dog were not in or even near the polling area on the
day of the election. Finally, the guards and dog did not
engage in any coercive or even questionable conduct
towards the employees. Indeed, the hearing officer
stated that there was “no credible testimony” that the
guards “interrogated, surveilled, or confronted employ-
ees.”
Notwithstanding the hearing officer’s assessment of
the Employer’s campaign material, it was not even al-
leged to be objectionable in any respect. Because it was
not, and because the security guards and dog engaged in
no objectionable conduct, we cannot conclude that the
two elements in combination had a reasonable tendency
to interfere with the employees’ freedom of choice. Fi-
nally, we note that the election was not close. Rather, it
was decided by a relatively wide 13–33 margin.3
Accordingly, for all these reasons we overrule the Un-
ion’s objection and certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for International Brotherhood of Teamsters,
Local 570, AFL–CIO, and that it is not the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All full-time and regular part-time production and
maintenance employees employed by the Employer at
its 10 Painters Mill Road and 11459 Cronhill Drive,
Owings Mills facilities, including material handlers,
material handler trainees, truck drivers, batch makers,
batch maker trainees, shipping clerks, maintenance me-
chanics, pilot plant technicians, junior batch makers,
senior batch makers, senior batch maker trainees, qual-
ity control clerks and quality control technicians, but
excluding: all inventory buyers, planners, order coordi-
nators, production coordinators, analytic chemists, sen-
sory specialists, accounting supervisors, inventory team
leaders, production team leaders, shipping supervisors,
receptionists, maintenance supervisors, maintenance
team leaders, process development managers, quality
team leaders, shipping team leaders, sample lab team
leaders, temporary employees, office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
3 See, e.g., Avis Rent-a-Car System, 280 NLRB 580, 581 (1986)
(closeness of the vote relevant factor in determining whether employees
could exercise free choice in the election).