Renco Electronics, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1999

330 N.L.R.B. 368 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
Renco Electronics, Inc. and Local 888, United Food
and Commercial Workers Union, AFL–CIO,
CLC, Petitioner. Case 29–RC–8705
December 23, 1999
SUPPLEMENTAL DECISION AND DIRECTION OF
THIRD ELECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to a second
election held on June 27, 1997, and the hearing officer’s
report recommending disposition of them.1 The election
was held pursuant to a Decision and Direction of Second
Election issued by the Board on May 30, 1997. The tally
of ballots shows 108 for and 100 against the Petitioner,
with 6 challenged ballots, an insufficient number to af-
fect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
recommendations only to the extent consistent with this
Decision.
The hearing officer credited the testimony of employee
Anrise Theodore that, as she was standing in line waiting
to vote, Board interpreter Ronald Derisca asked her, “Do
you know where to put your yes vote?” Notwithstanding
Derisca’s emphasis on the “yes” choice on the ballot, the
hearing officer concluded that Derisca’s conduct was
neither destructive of the Board’s standard of impartiality
nor could reasonably be said to have affected any votes.2
We disagree.
It is well settled that the Board’s role in representation
elections is to ascertain the employees’ wishes concern-
ing unionization, and not to influence that fundamental
choice.3 Board interpreters, like Board agents, act on
behalf of the Board and must endeavor to maintain and
protect the neutrality of the Board’s election procedures.4
Because Derisca’s “yes vote” comment was couched
within his generalized instructions regarding voting pro-
cedure, we find that employees who overheard the com-
ment could reasonably believe that Derisca spoke for the
Board and infer from his remark that the Board favored a
“yes” vote. We further find that since this preference
was heard by employees waiting in line to vote, there
was sufficient evidence of dissemination, given the
closeness of the election, to establish that the conduct
may have affected the outcome of the election.5

1 In the underlying case, Renco Electronics, Inc., 325 NLRB 1196
(1998), the Board remanded to the Regional Director, for the purpose
of conducting a hearing, that portion of the Employer’s Objection 2
embodied in testimony of the third, fourth, and fifth witnesses proffered
by the Employer in its July 18, 1997 letter to the Regional Director.
The Board found that this additional evidence was sufficiently related
to the issue of Board agent conduct timely raised by the Employer in its
original objections and raised substantial and material issues warranting
a hearing. The hearing was held on September 1, 1998.
2 Athbro Engineering Corp., 166 NLRB 966 (1967), and Glacier
Packing Co., 210 NLRB 571 (1974).
3 General Shoe Corp., 77 NLRB 124 (1948). (“In election proceed-
ings, it is the Board’s function to provide a laboratory in which an
experiment may be conducted, under conditions as nearly ideal as pos-
sible, to determine the uninhibited desires of employees. It is our duty
to establish those conditions; it is also our duty to determine whether
they have been fulfilled. When, in the rare extreme case, the standard
drops too low, because of our fault or that of others the requisite labora-
tory conditions are not present and the experiment must be conducted
over again.”)
4 In judging the conduct of a Board interpreter, the appropriate stan-
dard is that used to evaluate the conduct of a Board agent. Renco Elec-
tronics, 325 NLRB 1196 (1998).
We also find that the instant case is distinguishable
from those cases cited by the hearing officer in which the
Board has upheld election results despite questionable
comments by Board agents. In Wabash Transformer
Corp., 205 NLRB 148 (1973), affd. 509 F.2d 647 (8th
Cir. 1975), cert. denied 423 U.S. 827 (1975), the Board
found that a Board agent’s announcement on opening the
polls, that employees could “now vote for your union
representative” was not a basis for setting aside the elec-
tion. Noting that the announcement’s emphasis on the
right to vote for the union implicitly contained the con-
comitant right to vote against the union, the Board agreed
with the Regional Director that, in view of the statements
with respect to the Board’s neutrality in the preelection
notices and the employer’s campaign literature, the an-
nouncement was not per se violative of the Board’s stan-
dards or prejudicial to employees’ rights. In Newport
News Shipbuilding, 239 NLRB 82 (1978), the Board
agent, in demonstrating voting procedure to a group of
voters, mimed an “x” motion over the “yes” box on the
ballot, while concurrently stating that they should mark
the box of their choice. The Board agreed with the Re-
gional Director that simultaneously instructing employ-
ees to mark the box of their choice offset the effects of
the Board agent’s gesture. In contrast to Wabash and
Newport News, Derisca, as part of the routine instruc-
tions given by Board agents to voters, specifically asked
Theodore if she knew where to put her “yes” vote and
Derisca made no other qualifying statement to neutralize
the reasonable inference created by his statement,
namely, that the Board favored the Petitioner.
The Board’s role in conducting elections must not be
open to question. We conclude, based on the totality of
the circumstances, that Derisca’s comment jeopardized
the Board’s neutrality and may have had an impact on
the results of the election. Accordingly, we find that the
election must be set aside and a new election held.6
[Direction of Third Election omitted from publication.]
5 The hearing officer inferred, from Derisca’s instructions to Theo-
dore, that Derisca gave similarly truncated instructions, without refer-
ence to the “no” box, to the other employees.
6 Since we are setting aside the election based on Derisco’s comment
we find it unnecessary to pass on the hearing officer’s findings as to the
other allegations of objectionable conduct.
330 NLRB No. 52