SNE Enterprises, Inc

National Labor Relations Board - Board Decisions

May 17, 2005

344 N.L.R.B. 673 (N.L.R.B. 2005)

SNE ENTERPRISES
344 NLRB No. 81
673
SNE Enterprises, Inc. and United Steelworkers of
America, AFL–CIO–CLC. Case 9–RC–17883
May 17, 2005
ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has carefully con-
sidered the Employer’s request for review of the Re-
gional Director’s Second Supplemental Decision and
Certification of Representative (pertinent portions of
which are attached as an appendix). The request for re-
view is granted as it raises substantial issues warranting
review.
On December 8, 2004, the Board issued a Supplemen-
tal Decision, Order, and Direction of Second Election in
Harborside Healthcare, Inc., 343 NLRB No. 100 (2004),
in which the Board clarified the legal standard for deter-
mining when supervisory prounion activity is objection-
able.
In light of this decision, we grant review and remand
this proceeding to the Regional Director for reconsidera-
tion of the supervisors’ prounion activity, including but
not limited to whether their solicitation of authorization
cards constitutes objectionable conduct.1 The Regional
Director may reopen the record, if necessary.
Contrary to our dissenting colleague, we find that ap-
plying the Board’s decision in Harborside to this case is
consistent with the Harborside ruling itself and long-
standing Board practice and would not result in manifest
injustice.
First, the Board has already applied the standard set
forth in Harborside retroactively, in the Harborside deci-
sion itself. Indeed, the dissent in that case did not even
argue the point. Our dissenting colleague now argues that
the full majority did not apply the Harborside standard
retroactively with regard to one allegation—the solicita-
tion of cards—because one member of the three-member
majority found that the supervisor at issue did not in fact
solicit cards and therefore that member did not rely on
that conduct in agreeing to set aside the election. How-
ever, it is clear from the decision that a majority of mem-
bers did in fact apply the standard set forth in Harborside
retroactively to the facts in that case. Had the Board ma-
jority decided in its discretion to apply the standard pro-

1 In reply to our dissenting colleague, we do not remand this case
“primarily“ to determine whether the pre-petition solicitation of au-
thorization cards was objectionable conduct. Rather, we remand the
case to the Regional Director for reanalysis of all prounion supervisory
conduct alleged in the Employer’s request for review, without prejudg-
ing whether any of the conduct, alone or in context, is objectionable
and warrants a new election.
spectively only, they would have analyzed the case under
pre-Harborside principles.
Second, the Board majority’s retroactive application of
the Harborside standard is consistent with longstanding
Board practice. The Board’s usual practice is to apply
new policies and standards retroactively “to all pending
cases in whatever stage.” See Aramark School Services,
337 NLRB 1063 fn. 1 (2002) (quoting Deluxe Metal
Furniture Co., 121 NLRB 995, 1006–1007 (1958)).
Under Securities & Exchange Commission v. Chenery
Corp., 332 U.S. 194, 203 (1947), the propriety of retro-
active application is determined by balancing any ill ef-
fects of retroactivity against “the mischief of producing a
result which is contrary to a statutory design or to legal
and equitable principles. “See also Aramark School Ser-
vices, 337 NLRB at 1063. Pursuant to this principle, the
Board has stated that it will apply an arguably new rule
retroactively to the parties in the case in which the new
rule is announced and to parties in other cases pending at
that time so long as this does not work a “manifest injus-
tice.” See Pattern & Model Makers Assn. of Warren, 310
NLRB 929, 931 (1993); Loehmann’s Plaza, 305
NLRB 663, 672 (1991), supplemented by 316 NLRB 109
(1995), review denied by Food & Commercial Workers,
Local 880 v. NLRB, 74 F.3d 292 (D.C. Cir. 1996); see
also NLRB v. Bufco Corp., 899 F.2d 608, 609 (7th Cir.
1990) (citing cases), enfd. Dunn v. Postal Service, 960
F.2d 156 (Fed. Cir. 1992).
In determining whether the retroactive application of a
Board rule will cause manifest injustice, the Board will
consider the reliance of the parties on preexisting law,
the effect of retroactivity on accomplishment of the pur-
poses of the Act, and any particular injustice arising from
retroactive application. See, e.g., Pattern & Model Mak-
ers Assn. of Warren, 310 NLRB at 931; see also Con-
solidated Freightways v. NLRB, 892 F.2d 1052, 1058
(D.C. Cir. 1989); Retail Wholesale Store Union v. NLRB,
466 F.2d 380, 390 (D.C. Cir. 1972); NLRB v. Bufco
Corp., 899 F.2d at 612.
A balancing of the relevant factors indicates that retro-
active application of the Harborside standard will not
work a manifest injustice in this case. First, there is no
evidence that the supervisors here took pre-Harborside
law into account before engaging in their conduct during
the election campaign. Moreover, to the extent that the
parties’ preelection conduct did rely on pre-Harborside
law, any prejudice they may have suffered does not rise
to the level of a manifest injustice. The instant case con-
cerns the validity of a representation election, not the
resolution of an unfair labor practice or other legal li-
ability. In this regard, our dissenting colleague’s reliance
on Epilepsy Foundation of Northeast Ohio v. NLRB, 268
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD674
F.3d 1095 (2001), enfg. in part 331 NLRB 676 (2000), is
misplaced. In that case, the D.C. Circuit found that it
would be a “manifest injustice” to find a violation and
require the employer to pay damages to a nonunion em-
ployee who was fired because the employee was not
permitted to have a coworker present during discussions
with his supervisors. At the time of the employer’s ac-
tions, nonunion employees had no such legal right. See
268 F.3d at 1102–1003. In the instant case, the Board is
not finding a violation or ordering any party to pay dam-
ages or issuing any kind of order against a party. Al-
though the election may be invalidated and subsequently
re-run, no party will suffer the kind of order that con-
cerned the court in Epilepsy Foundation.
Further, unlike Epilepsy Foundation, Harborside,
while altering the Board’s approach to one aspect of su-
pervisory activity (card solicitations), did not otherwise
represent a significant departure from a well-settled area
of the law. As the Sixth Circuit noted in its remand of
Harborside to the Board, Board law has not been consis-
tent on the issue of when prounion supervisory conduct
will warrant a new election. See Harborside Healthcare,
Inc. v. NLRB, 230 F.3d 206 (6th Cir. 2000). Indeed, it
was that inconsistency that led the Board to state in Har-
borside its legal standard for determining when supervi-
sory prounion activity is objectionable. To be sure, this
clarification of the legal standard did involve overturning
certain Board precedent.2 However, it was a part of the
process of clarifying a broader area of Board law that had
been inconsistent.
We recognize that setting aside a union victory in an
election does represent a setback for the union. However,
at bottom, it is employee free choice that is at issue, not
the victory or loss of any particular party. That free
choice can be undermined by supervisory conduct. In
any event, a union’s election loss need only be tempo-
rary. If the employees freely vote for the union in a sec-
ond election, the union will have its certification.
Further, to the extent that the Union may be harmed,
we believe that the statutory interest in protecting em-
ployees’ Section 7 rights under the Act and assuring free
and fair elections outweigh any injustice resulting from
the retroactive application of the Harborside standard.
We recognize that, should the election ultimately be set
aside, the Petitioner would be required to expend further
resources in a second electoral campaign and would be

2 Our colleague thus correctly notes that our holding as to supervi-
sory solicitation of cards involved a reversal of precedent. See, e.g.,
Millsboro Nursing, 327 NLRB 879 (1999). But that issue cannot be
divorced from the larger issue of prounion supervisory conduct. In-
deed, it is an aspect of that larger issue. And, as discussed above, that
larger issue had not been consistently treated by the Board.
subjected to the possibility of ultimately losing the elec-
tion. However, that harm must be balanced against the
employees’ interest in a free and fair election and the
harm that would result from certifying the results of an
election tainted by objectionable conduct interfering with
that interest. As stated above, we conclude that the statu-
tory interest in assuring a free and fair election in this
case outweighs any harm suffered by the Petitioner from
the retroactive application of the Harborside standard.
Finally, our colleague says that “countless organizing
campaigns” have been conducted in reliance on pre-
Harborside law, and “countless elections” are subject to
invalidation. No data are given in support of these asser-
tions. We do not know whether, or to what extent, super-
visors have engaged in prounion activity that would have
been nonobjectionable under pre-Harborside law and
objectionable now. Pure speculation as to the number of
elections invalidated retroactively under the Harborside
standard does not warrant a departure from our normal
retroactivity rule.
For these reasons, we find that retroactive application
of the Harborside standard would not result in manifest
injustice and that retroactive application of Harborside is
appropriate, as it was in the Harborside case itself. Ac-
cordingly, we remand this case to the Regional Director
for reanalysis in light of the Board’s decision in Harbor-
side Healthcare.
With regard to the Employer’s contentions regarding
the hearing officer’s admission of Petitioner’s Exhibit 2,
we deny review without prejudice to the Employer’s op-
portunity to submit additional evidence pertaining to the
Employer’s stance regarding the Petitioner’s organiza-
tional campaign.
The Regional Director shall thereafter issue a third
supplemental decision.
MEMBER LIEBMAN, dissenting.
I would not remand this proceeding for hearing. Based
on my dissenting views in Harborside Healthcare, Inc.,
343 NLRB No. 100 (2004), the conduct engaged in by
the supervisors in this case was clearly not objectionable.
In addition, it would work a manifest injustice on the
parties to retroactively apply the new rule set forth in
Harborside concerning solicitation of authorization cards
by prounion supervisors. Accordingly, I would affirm the
Regional Director’s Supplemental Decision.
The Regional Director found that the three leads
whose conduct is at issue in this case were supervisors
based only on their limited authority to assign and re-
sponsibly direct the work of unit employees. Only 3 of
the approximately 21 lead persons engaged in any con-
duct which is even alleged as objectionable, in a unit of
approximately 182 employees. One of the leads told an
SNE ENTERPRISES 675
indeterminate number of employees that the Union
would help them get better benefits, and said to three
people, referring to a discharged union supporter, “if it
happened to Benny, it could happen to you.” Another
lead told one unit employee that the employees had gone
too far to stop in the organizing campaign and they
needed to continue. Two of the leads told an unspecified
number of employees that they were currently “at will”
employees but if the Union were elected it could negoti-
ate protection from discharge unless the Employer had
good cause. Finally, two of the leads were on the union
organizing committee and attended union meetings and
solicited authorization cards. All of the card solicitation
was before the critical period between the filing of the
petition and the election, except that one lead testified
that he may have solicited one card after the petition was
filed. Based on credited evidence, and not even consider-
ing Petitioner’s Exhibit 2, which the Employer argues
was improperly admitted, it is clear that the Employer
expressed its opposition to union representation for the
unit employees during the campaign.
Consistent with the dissenting opinion in Harborside,
supra, which was entirely consistent with Board law at
the time, I would find none of this conduct to be objec-
tionable. In fact, I question whether, even under the ma-
jority’s Harborside test, any of the conduct would be
objectionable aside from the solicitation of authorization
cards. Thus, it appears that my colleagues are remanding
this case primarily to determine whether or not the pre-
petition solicitation of authorization cards by two lead
persons in a unit of 182 employees was objectionable
conduct warranting a new election.
In our Harborside dissent, Member Walsh and I ex-
plained why the majority’s view that solicitation of au-
thorization cards by prounion supervisors is objection-
able conduct is unwise and unworkable, particularly
where that solicitation occurred prior to the critical pe-
riod. The remand for consideration of that issue in this
case, however, raises an additional issue that was not
explicitly considered by the majority in Harborside.
There the majority acknowledged that it was departing
from settled Board law in holding that supervisory solici-
tation of cards will ordinarily be objectionable. See Har-
borside, supra, slip op. at 6; Millsboro Nursing & Reha-
bilitation Center, 327 NLRB 879 (1999). In Epilepsy
Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095
(D.C. Cir. 2001), the U.S. Court of Appeals for the Dis-
trict of Columbia Circuit held that the Board erred in
giving retroactive effect to its new rule that employees
not represented by a labor organization have a right to
request representation by a coworker during an investiga-
tory interview that could lead to discipline. Id. At 1102–
1103. The court held that the Board’s rule had to be ap-
plied prospectively only, because it was such an abrupt
departure from settled law. Id. That principle applies
here.
Although the Harborside majority purported to apply
its new rule regarding card solicitation by prounion su-
pervisors retroactively in Harborside,1 nowhere did the
majority explain why it was doing so (a point my col-
leagues tacitly concede). Meanwhile, countless organiz-
ing campaigns have been conducted in reliance on the
pre-Harborside law on supervisory solicitation of au-
thorization cards. By retroactively applying the Harbor-
side rule, the majority potentially subjects countless elec-
tions to unexpected invalidation because of conduct that
was nonobjectionable when engaged in. That real possi-
bility, as demonstrated by this case, seems unfair.2
My colleagues argue that no true reliance interest is
implicated. First, they contend that Harborside was “not
a departure from a well-settled area of the law.” But Har-
borside was, indeed, just such a departure, especially
with respect to supervisory card solicitation. The Board
there overruled not only Millsboro Nursing, 327 NLRB
879 (1999), but the decisions it relied upon. There was
nothing unclear or unsettled about the Board’s case law
on this issue, nor had the appellate courts questioned the
Board’s approach. Second, my colleagues argue that a
union is not truly harmed by setting aside an election that
it won under the prior legal standard. That claim is obvi-
ously wrong. Certification as the exclusive bargaining
representative is a valuable legal interest—none is more
important to unions under the Act. Stripping a union of
its electoral victory, and requiring it to expend the re-
sources to conduct another electoral campaign (and per-
haps pursue related legal proceedings), is a substantial
burden. In the context of a retroactivity analysis, there is
no meaningful distinction between setting aside an elec-
tion and imposing monetary or other legal liability.

1 In fact, the new rule was not actually applied by the full majority in
Harborside itself. One member of the three-member majority (Member
Meisburg) did not find that the supervisor at issue in that case actually
solicited any authorization cards from any unit employees she super-
vised, and thus he did not rely on that particular conduct in voting to set
aside the election. See Harborside, supra, slip op. at 6 fn. 15. Thus, a
majority of the Board did not in fact apply this new principle retroac-
tively. My colleagues insist that, despite Member Meisburg’s individual
position, the “standard set forth in Harborside“ was applied retroac-
tively. But had supervisory card solicitation been the only issue pre-
sented, there would have been no majority to set aside the election there
and no retroactivity issue.
2 While the majority describes my concern as based on “pure specu-
lation,” experience teaches that card solicitation by borderline supervi-
sors is not uncommon. See, e.g., Millsboro Nursing & Rehabilitation
Center, Inc., 327 NLRB 879, 880 fn. 7 (1999), (and cases cited).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD676
Contrary to the majority, then, I believe it would work
a manifest injustice on the parties to apply this new rule
to this or any other case that was pending before Harbor-
side was decided and while the Board’s settled rules
were in effect. For this additional reason, I would affirm
the Regional Director’s decision, and I dissent from my
colleagues’ decision to remand this case.
APPENDIX
Pursuant to the provisions of a Decision and Direction of
Election (the Decision) which issued on April 21, 2004, an
election by secret ballot was conducted on May 20, 2004.1 The
Employer timely filed 16 objections to conduct affecting the
results of the election. The Acting Regional Director issued a
Supplemental Decision, Order Directing Hearing, and notice of
hearing on June 15, 2004, dismissing Objections 1 and 2,2 ap-
proving the Employer’s request to withdraw Objections 11, 15,
and 16, and directing a hearing to be held before a hearing offi-
cer to resolve the issues raised by the Employer’s remaining
objections. A hearing officer thereafter held a hearing on the
issues raised by the Employer’s remaining objections. The
hearing officer then issued her report recommending that the
remaining objections be overruled in their entirety and that an
appropriate Certification of Representative be issued.
The Employer timely filed 63 exceptions to the hearing offi-
cer’s finding and recommendations. In general terms, the Em-
ployer maintains that the hearing officer erred in her rendition
of the testimony and evidence, in her credibility resolutions and
factual findings, in her application of the appropriate facts to
the law and in her conclusions and recommendations. The Em-
ployer also complains of the manner in which the hearing offi-
cer handled the admission of Petitioner’s Exhibit No. 2, in gen-
eral complains of what it describes as the hearing officer’s bias
and seeks a new hearing.
After a review of the record in light of the exceptions and the
Employer’s brief, and for the reasons set forth in detail below, I
find that the hearing officer’s conclusions and recommenda-
tions are amply supported by the record and the applicable law
and that the record does not support any bias on her part. Ac-
cordingly, I affirm her findings and recommendations overrul-
ing the Employer’s remaining objections, as supplemented
below, and will issue an appropriate Certification of Represen-
tative.
As noted by the hearing officer, the objections generally
break down as those related to, (a) supervisors’ prounion activ-
ity; (b) union agents’ presence in the Employer’s facility with-

1 The tally of ballots revealed that there were 182 eligible voters; 87
votes were cast for the Petitioner; 82 votes cast against the Petitioner;
and 3 ballots were challenged.
2 Included with the objections was a motion to dismiss. The Em-
ployer‘s Objections 1 and 2 and its motion to dismiss concerned super-
visors‘ solicitation of authorization cards which it maintained could not
be counted as part of a showing of interest. An administrative investiga-
tion of this allegation was carried out and a determination made that
even discounting those authorization cards procured by individuals later
determined to be supervisors, the showing of interest in the instant case
remained sufficient to support the underlying petition. Objections 1 and
2 were, therefore, dismissed and the motion denied.
out permission; (c) a union committee person advising an em-
ployee that he was ineligible to vote; (d) conversations of em-
ployees waiting to vote; (e) the union observer’s wearing of a
prounion T-shirt; and (f) the cumulative effect of this conduct. I
will, therefore, consider the Employer’s exceptions and argu-
ments in each of these areas separately.
In my consideration of the objections and the proof available
to sustain them, I am mindful that in an objections case, the
burden is on the objecting party to prove its case. A Board-
conducted representation election is presumed to be valid.
NLRB v. WFMT, 997 F.2d 269 (7th Cir. 1993); NLRB v. Ser-
vice American Corp., 841 F.2d 191, 195 (7th Cir. 1988); Pro-
gress Industries, 285 NLRB 694, 700 (1987). Thus, an object-
ing party must demonstrate not only that the conduct occurred,
but also that the conduct interfered with the free choice of em-
ployees to such a degree that it has materially affected the re-
sults of the election.
I. SUPERVISORS’ PROUNION ACTIVITY
A. Background
As reflected in the decision, the Employer is engaged in the
manufacture and sale of windows and doors at its Huntington,
West Virginia facility. The only issue which arose with respect
to the arrangements for the election in this matter concerned the
issue of whether the 19 “lead persons” working at the Em-
ployer’s facility should be excluded from the unit. The Em-
ployer, contrary to the Petitioner, contended that they were
supervisors within the meaning of Section 2(11) of the Act. A
determination was made in the decision that they were, in fact,
supervisors based upon their authority to assign and direct
work. There was no contention that the lead persons had any
independent authority to discipline or discharge employees and,
contrary to the Employer’s contentions, the record failed to
show that they could recommend the hire of a new employee.
The record developed by the hearing officer does not affect the
conclusions reached in the decision on these points.
The lead persons relevant to this proceeding are Chad Ed-
wards, Henry Withrow, and Ruth Adkins. Prior to the date of
the issuance of the decision, they assumed that they were em-
ployees in the unit who would be eligible to vote. This is not
surprising sinc prior representation elections, lead persons had
been allowed to vote. Once the decision issued, the plant man-
ager held a meeting attended by the lead persons during which
they were advised of the determination with respect to their
status as well as given and read a printed statement concerning
what they could and could not do regarding the union campaign
from that day forward. The record indicates that from that point
in time, the lead persons in issue ceased their activity in support
of the Union. Also after the decision issued, at least Adkins was
debriefed by the Employer’s human resources manager, Susan
Dingess, as to any approaches that she had made to employees
with respect to the Union. Dingess also apparently talked to
lead persons in general about their opinions concerning the
Union after she learned of their status.
B. The Hearing Officer’s Factual Determinations
As set forth in detail in her report, the hearing officer con-
cluded that Edwards, Withrow, and Adkins all supported the
SNE ENTERPRISES 677
Union and that Withrow and Edwards had been on the organiz-
ing committee (Edwards wearing a button identifying him as a
member of the committee), solicited union cards and attended
union meetings. She concluded that Edwards made statements,
some of which occurred during the critical period, that the Un-
ion would help them get better benefits to an indeterminate
number of people; and lamented to three people, “If it happened
to Benny, it could happen to any of us” (referring to the dis-
charge of a union supporter).3 She found that Withrow stated to
Edwards and employee Al Clere that they had gone too far to
stop and needed to continue. Finally she concluded that Ed-
wards and Adkins had told an unspecified number of employ-
ees that they were currently “at will” employees but that if the
Union were elected, through negotiations, they would be able to
obtain protection from termination except for probable cause
and would be able to have their day in court in such circum-
stances.
The hearing officer organized her report by summarizing the
testimony of the various witnesses called by the Employer in
support of the objections in this area. She then relied upon her
review of the testimony, coupled with credibility resolutions, to
develop a summary of the lead persons’ prounion conduct.
Many of the Employer’s exceptions pertain to her synthesis of
testimony. Due to the large number of such objections, I hesi-
tate to specifically address them, but because I believe the de-
monstrable incorrectness of these exceptions highlights the
Employer’s general tendency in its exceptions and supporting
brief to state as fact that which is not actually reflected in the
record, I will do so. The witnesses are set forth below in the
same order as they appear in the hearing officer’s report.
Joseph Mccoy
Lead Person Joseph McCoy testified in general with respect
to four union meetings he attended and one in particular. The
Employer takes issue with the hearing officer’s statement that
McCoy did not indicate how many of the Employer’s 182 em-
ployees attended the meeting and contends that his testimony
indicates that “a lot of employees attended.” A review of the
record indicates that the hearing officer was correct in her state-
ment that McCoy did not indicate how many employees at-
tended. The transcript page cited by the Employer to the con-
trary, contains only the following as possible support for the
Employer’s challenge:
Q. [W]as everybody given the opportunity to ask ques-
tions?
A. Yes
Q. Did a lot of people ask questions?
A. There were a few, yes.
This certainly does not indicate that there were “a lot” of em-
ployees in attendance at the meeting as the Employer asserts.

3 On August 23, 2004, a consolidated complaint issued in Case 9–
CA–40915, et al., alleging, inter alia, that the Employer discharged
employee Benny Moore on February 23, 2004, in violation of Sec.
8(a)(1) and (3) of the Act.
Alvin Clere
The Employer excepts to the hearing officer’s statement that
“Clere denied that Edwards promised that he would receive
extra benefits for helping the Union.” The Employer asserts
that at least such was implied. In fact, the hearing officer ac-
knowledged that Clere believed that Edwards was indicating
that he might receive some reward although Edwards did not
actually say so. The following appears in the record and clearly
supports the hearing officer’s summary of Clere’s testimony on
this point:
Q. Did Chad ever indicate that you would receive extra
benefits for helping out?
A. Not so much extra benefits, but, you know, I be-
lieve there was an understanding there. I mean, if I—you
know, I’d probably be rewarded for my help if I gave any.
There was a give and take there.
. . . .
HEARING OFFICER FRY: Tell me exactly what the
words were.
THE WITNESS: He told me that in a way being a former
supervisor, and I guess I have a lot of clout around.
There’s been a lot—I’ve been there eight years. There’s
people that’s worked for me that are still there, numerous
employees that are still there. He told me, he said, man, if
you sided with us, we could be[at] [sic] them hands down.
We’d have it locked in.
. . . .
Q. What was in that for you?
A. Well, he didn’t say, you know, you’re going to get
this, this, this and this, but it was kind of implied. I mean,
you could tell by facial expressions and gestures, you
know.
The Employer takes exception to the hearing officer’s state-
ment that, according to Clere, Withrow felt that “maybe the
Company would come after them for getting it [the Union]
started.” In describing what Withrow said to him, Clere testi-
fied, “They felt maybe the Company would come after them
forgetting it started.” In attempting to state it in more precise
terms, Clere said that it was felt that there was a worry they
might “just start firing people for getting it started.” Thus, the
hearing officer’s summation of Clere’s testimony on this point
is certainly reflected in the record.
Finally, with respect to Clere’s testimony, the Employer ex-
cepts to the hearing officer’s conclusion that “Clere testified
that he knew the Employer opposed the Union.” The Employer
argues that all Clere testified to was that he received letters that
advised him to vote his conscience and that there is no evidence
that he was presented with anything indicating the Employer
was against the Union. The following appears in the record on
this point:
HEARING OFFICER FRY: Were they saying, we don’t
care which way you won the Union or did they point out –
THE WITNESS: Oh, no, they was definitely—they
were—they wanted people to vote against the Union. I
MR. FREE: I thought that’s what I asked. BY MR.
FREE:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD678
Q. So, there wasn’t any doubt in your mind that the
Company’s position was against the Union?
A. No doubt in my mind.
As will be dealt with later, from the material distributed by the
Employer and received in the record in this matter, recipients of
such would hardly have any doubt as to how the Employer
wanted them to vote.
Chad Edwards
The Employer excepts to “the Hearing Officer’s characteri-
zation of Chad Edwards’ testimony as indicating that he told
employees that Waymon Free was the Union representative and
that he got answers to questions from Waymon Free.” The tes-
timony from Edwards on this point follows:
Once we got the organizing committee we solicited the cards,
we would have meetings weekly, we would let people know
when they was, get the word out. People were full of ques-
tions and you would invite them to the meetings, told them
who was representing us, Waymon was his name. Any ques-
tions they may have he could—if he didn’t know the answer
he could get it.
The hearing officer’s summation of this testimony reads some-
what differently than stated by the Employer in its exceptions.
To wit, “He told employees that Waymon Free was the union
representative and got answers to questions from Waymon for
employees who did not attend the meetings.” Thus, she cor-
rectly mirrors the.somewhat ambiguous testimony of Edwards
on whether Edwards told employees that he got answers from
Free. Moreover, since Edwards was the Employer’s witness—
and from the record it would seem a nonhostile one—being ques-
tioned by the Employer at the time he made the statement, and
the Employer did not seek to clarify what he meant, it hardly
seems appropriate for the Employer, who has the burden of
proving its case, to complain of any reasonable interpretation of
Edward’s testimony.
The Employer excepts to “the Hearing Officer’s conclusion
that Edwards never promised anything to employees.” In his
testimony, as the hearing officer indicates, Edwards related that
he gave employees his opinion of the advantages of unioniza-
tion. His testimony on this point follows:
Q. You told them that they get the right to bargain? A.
Yes.
Q. Did you ever tell them that they’d get anything
else?
A. Everything was open on the bargaining table. I
never promised anyone or any certain person nothing be-
cause I didn’t have the authority to do that.
Thus, the hearing officer correctly incorporated this testimony
from Edwards into her summation.
The Employer took exception to the hearing officer’s con-
clusion that Edwards was aware of the Employer’s opposition
to the Union. The following testimony supports the hearing
officer’s finding:
HEARING OFFICER FRY: Did the Company have an of-
ficial position about the Union?
THE WITNESS: Official?
HEARING OFFICER FRY: Whether they were for it,
against it, or whatever? THE WITNESS: Evan? [sic?]
HEARING OFFICER FRY: Yes.
THE WITNESS: Yes, against it.
HEARING OFFICER FRY: Did they tell employees about
that? THE WITNESS: Yes.
Edwards then went on to testify as to how he arrived at this
conclusion from speeches given and movies shown by the Em-
ployer.
Ruth Adkins
The Employer excepts to the hearing officer’s crediting of
Ruth Adkins that Adkins had stated to an indeterminate number
of employees that “right now, employees were ‘at will’ em-
ployees and with the Union they could take it and negotiate it.”
The Employer does not challenge that Adkins’ testimony sup-
ports this conclusion, but instead believes that the hearing offi-
cer, whom it characterizes as biased and prejudiced, should not
have credited her. It points to the testimony of Human Re-
sources Manager Susan Dingess as being contrary to Adkins—
this simply is not the case. Dingess testified that after it was
determined that lead persons were supervisors, Dingess spoke
with Adkins about what she may have said to others about the
Union. Dingess learned that Adkins had “discussed with them
employment at will. . . .” She further testified “[I]n my discus-
sion with her, she had said that she had just discussed employ-
ment at will.” There is no indication that Dingess was told by
Adkins that Adkins told employees that this would automati-
cally end with any selection of the Union. The Employer also
points to the testimony of employee Heather Daniels as being
contradictory to Adkins on this point. Daniels testified, “The
only thing she said about being fired was that they couldn’t fire
you unless they had a good probable cause to be firing you.”
The Employer protests the hearing officer’s crediting of Adkins
on this point.
The Board’s long-established policy is not to overrule a hear-
ing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces the reviewer that
they are incorrect. BFI Waste Services, 343 NLRB No. 35 fn. 1
(2004); Deaconess Medical Center, 341 NLRB 589 fn. 1
(2004); Stretch-Tex Co., 18 NLRB 1359, 1361 (1957). I find no
basis in the instant case for concluding that the hearing officer’s
findings are a result of bias or that they are otherwise shown to
be incorrect.
Heather Daniels
The Employer excepts to “the Hearing Officer’s failure to
recognize the intimidation felt by Heather Daniels when she was
approached by both Chad Edwards and Ruth Adkins regarding
the Union.” The Employer bases this conclusion on what it
characterizes as Daniels having “testified that Ruth Adkins
implied that her work life would be more difficult if she crossed
Adkins and did not support the Union.” The Employer points to
a section of the record indicating that Adkins had threatened
someone else, as the hearing officer correctly notes, over a
matter unrelated to the Union. Daniels testified:
SNE ENTERPRISES 679
HEARING OFFICER FRY: Was there any indication that
she would make it harder on people that [did not] support
the union?
THE WITNESS: I don’t know. Just personally the one
day that I was talking to her about that. Because I’m not
around her every day. Just kind of every so often. So just
that one day, I would say in a way she would.
In light of such tentative testimony it is hardly surprising that
the hearing office did not include any definitive finding that
Daniels was intimidated by Adkins, much less Edwards, neither
of whom was her lead person.
The Employer excepts to the hearing officer’s statement that,
with respect to a conversation between Daniels and Edwards,
“She did not say whether this occurred after February 20.”
(This date being the beginning of the critical period.) The Em-
ployer claims that the questions to Daniels were specifically
limited to the “last few months.” The section of the record it
cites in support of this contention specifically contained the
query to Daniels, “During the last few months, were you ever
approached by Ruth Adkins regarding the union?” [Emphasis
added.] The questioning that prompted testimony regarding
Edwards began with “Were you ever approached by any other
lead person?” No time limitation was indicated. Therefore the
hearing officer’s factual summation on this point is correct.
The Employer excepts to the hearing officer’s summary of
Daniels’ testimony that “[w]hile she spoke about problems she
had working with Adkins, who was not her lead, Daniels de-
nied that the problems were caused because she did not agree
with Adkins’ Union views.” On redirect Daniels was asked,
since Adkins had never specifically said anything to make her
fear retaliation regarding the Union, did Adkins do anything to
make her afraid? Daniels related that her experiences with Ad-
kins since Daniels had worked there brought her to this conclu-
sion. Then Daniels gave an example of a work-related problem
and indicated that Adkins had only recently begun speaking to
her after that. These were the only problems with Adkins that
Daniels described in her testimony. After this testimony, the
following transpired:
Q. Did you think she did this because you didn’t agree
with her and her union views?
A. Union views? No.
Therefore, the hearing officer’s summary of her testimony is
correct.
In summation, the hearing officer’s factual conclusions are
supported by the record in this matter and I find no reason to
disturb her credibility resolutions. Moreover, having carefully
reviewed the entire record, I find no evidence supporting the
Employer’s contention that the hearing officer was biased.
C. The Hearing Officer’s Legal Analysis and Conclusion
In her report, the hearing officer applied the two-pronged test
utilized by the Board in evaluating whether prounion conduct is
objectionable and warrants the holding of a new election. As
summarized by the Board in Terry Machine Co., 332 NLRB
855, 856 (2000):
[T]he pro-union activities of statutory supervisors may consti-
tute objectionable conduct warranting setting aside the elec-
tion in two situations: (1) when the employer takes no stand
contrary to the supervisors’ pro-union activity, thus leading
employees to believe that the employer favors the union; or
(2) when the supervisors’ pro-union activity coerces employ-
ees into supporting the union out of fear of retaliation by, or
rewards from, the supervisors. [Footnote omitted.] Sutter
Roseville Medical Center, 324 NLRB 218 (1997), cited with
approval in Millsboro Nursing & Rehabilitation Center, 327
NLRB No. 153 (1999). Thus, Board and court precedent es-
tablish that an election is not per se invalid simply because
there is evidence of pro-union supervisory activity, any more
than an election is considered per se invalid because supervi-
sors have campaigned against the union. Evergreen Health-
care, Inc. v. NLRB, 104 F.3d 867, 874 (6th Cir. 1997) (deny-
ing enforcement of Evergreen Healthcare, Inc., 318 NLRB
200 (1995), Wright Memorial Hospital v. NLRB, 771 F.2d
400, 404 (8th Cir. 1985).
With respect to the first prong of the test, the hearing officer
concluded that from employees’ descriptions of meetings and
movies shown to employees, it was clear that the Employer’s
opposition to the Union was made known to employees. The
Employer does not contend that it was not, in fact, opposed to
unionization, but asserts that what it sought to do was give
employees information that they could utilize in making their
own choice. As can be ascertained by anyone familiar with
“campaigns,” it is clear that supposed informational material
directed at voters can convey a clear message that the purveyor
of the “information” desires that the individuals to whom it is
directed will vote a particular way. Moreover, it is clear from a
review of documentary evidence appearing in the record,
(which on occasion does, in fact, indicate a desire on the Em-
ployer’s part that employees vote no) that this is, in fact, the
sort of campaign the Employer waged which would have left
no doubt in an employee’s mind as to the position taken by
his/her employer.4 Indeed, one particular lengthy item given
employees regarding bargaining and strikes ends with the
statement, “We hope the facts help you in making your deci-
sion. We hope you will vote NO.”
The hearing officer further concluded that the second prong
of the test had not been met (i.e., the lead persons had made no
promises beyond normal prounion electioneering concerning
the benefits of unionization), and there was no evidence that
they indicated that they would use their supervisory authority to
reward or punish employees. Although the Employer argues in
its brief that the current facts are distinguishable from certain
precedent cited by the hearing officer, the lead persons’ con-

4 The Employer has raised an issue concerning the events surround-
ing the admission of P. Exh. 2, which is a packet of campaign material.
As set forth in more detail below, I believe that these documents may
properly be considered by me in this matter. I note, in any event, that in
addition to the meetings and movies relied upon by the hearing officer
for her conclusion that employees would have known the Employer
opposed unionization, P. Exh. I clearly demonstrates that prior to the
election the Employer made known to employees specifically it wanted
employees to vote no.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD680
duct in the instant case appears little different from that found
in a number of other cases in which the Board determined that
supervisory prounion conduct was not objectionable, including
Terry Machine, supra, cited by the hearing officer. Thus, in
Terry Machine, supervisors who signed and then solicited sig-
natures from employees on showing of interest petitions; at-
tended organizational meetings for the union; encouraged em-
ployees to attend union meetings; spoke in favor of the union at
the workplace and at union meetings; distributed union litera-
ture; encouraged employees to support or vote for the union;
wore and distributed union paraphernalia (buttons and T-shirts);
and signed and solicited signatures on a second petition, which
sought commitments from employees to vote for the union
prior to the election, were found not to have engaged in coer-
cive activity, nor did their conduct have a tendency to imply
retaliation or reward.5
As stated in Terry Machine, supra, 332 NLRB at 856, and
equally applicable to the instant case:
Contrary to the Employer’s contentions, we find that such ac-
tivity is not coercive, nor does it have a tendency to imply re-
taliation or reward. As we stated in Sutter, supra, 324 NLRB
at 219, quoting NLRB v. San Antonio Portland Cement
Co., 611 F.2d 1148, 1151 (5th Cir. 1980), solicitation is not
objectionable where “nothing in the words, deeds, or atmos-
phere of a supervisor’s request . . . contain[s] the seeds of po-
tential reprisal, punishment, or intimidation.” [Footnote omit-
ted.] Similarly, “supervisory statements endorsing the union
and pointing out the possible benefits of union representation .
. . are not inherently coercive and are not objectionable when
made without threats of retaliation or reward.” [Footnote
omitted.] Under these circumstances, such statements are
“permissible expressions of personal opinion.” Wright Me-
morial Hospital, supra, 771 F.2d at 405.
The hearing officer concluded that there was no evidence
that lead persons indicated in any way that they would use their
supervisory authority to reward or punish employees who did
not agree with their position regarding the Union. While the
two employees presented by the Employer indicated that they
may have somehow thought that they might glean some benefit
(Clere) or somehow suffer some negative impact (Daniels),
there was nothing in the record to lend any support for the va-
lidity of this feeling. “[T]he Board applies an objective test
when evaluating alleged objectionable conduct and the subjec-
tive reactions of employees are irrelevant to the question of
whether there was, in fact, objectionable conduct.”‘ Picoma
Industries, 296 NLRB 498, 499 (1989), quoting Emerson Elec-

5 See, also FPA Medical Management, 331 NLRB 936 (2000) (as-
suming physicians were supervisors, their conduct did not taint the
election even though they regularly wore union buttons, confronted
management in the presence of employees concerning campaign and
related matters, circulated a “Message of Support” and told staff em-
ployees that they should vote for the union); U.S. Family Care San
Bernadino, 313 NLRB 1176 (1994) (statements by three team leaders,
including telling employees that benefits of having a union included
better pay and benefits and job protection, and telling an employee that
there were “pros to go with the union,” did not constitute coercion).
tric Co., 247 NLRB 1365, 1370 (1980), enfd. 649 F.2d 589
(8th Cir. 1981); Terry Machine Co., supra, 332 NLRB at 857.
Although the applicable standard contemplates an examina-
tion of the deeds or words of supervision to see if they indicate
some threat of retaliation or offer of benefit to employees, the
indicia of authority a supervisor possesses is also a factor to be
considered in evaluating whether his or her prounion activity
could reasonably tend to coerce employees. Dai-Ichi Hotel
Saipan Beach, 326 NLRB 458 (1998). In the instant case, the
lead persons’ supervisory status hinges only on their ability to
assign and direct employees. While they on occasion may move
employees from one position to another, and there may be some
positions that are marginally more desirable than others, they
do not have authority to move employees into higher paying
jobs. Although they may have some input into whether an em-
ployee receives training which might enable an employee to
move into a higher paying position, this is certainly not an abil-
ity to have any immediate impact on an employee. Thus, there
appears no basis for an employee developing any expectation
that agreeing or disagreeing with a lead person’s position on
unionization might have some great impact on the employee’s
work life.
While the Employer points to statements by Edwards and
Withrow expressing fear that employees who supported the
Union might be retaliated against by discharge, this is not, un-
der the circumstances, objectionable conduct. Terry Machine
Co., supra, 332 NLRB at 856–857. There was certainly no indi-
cation that the lead persons were in a position to take such ac-
tion or had any special knowledge that this would occur.
Rather, they were expressing their opinion apparently based
upon what allegedly happened with respect to employee Bennie
Moore.
The Employer attempts to distinguish the instant case by ar-
guing that at least Edwards and Withrow were agents of the
Union due to their position on the organizing committee and
their conduct associated with the committee. The Board, how-
ever, does not equate “membership” in an organizing commit-
tee as automatically conveying agency status. Cornell Forge
Co., 339 NLRB 733 (2003). Nevertheless, assuming for the
sake of a discussion on this point that the committee members
were cloaked with authority by the Union in their position as
committee members to warrant concluding that they were
agents, this appears to be irrelevant at least in the context of this
case. Nothing was said to employees which was objectionable
if said by employer agents, union agents, or dual agents.
Finally, I note that any prounion conduct on the part of the
lead persons apparently ceased approximately a month before
the election. The Employer claims that it had no reason to know
of its lead persons’ prounion conduct, but this is questionable
based upon Dingess’ testimony indicating that she, in fact, had
discussions with at least some of them on this topic following
the ruling on their status. In any event, the campaign material
disseminated by the Employer in many respects countered what
lead persons had indicated were the advantages of unioniza-
tion.6

6 For example, apparently one of the arguments made by Edwards in
favor unionization centered on the benefits enjoyed by employees at a
SNE ENTERPRISES 681
II. UNION AGENTS’ PRESENCE IN THE EMPLOYER’S FACILITY
WITHOUT PERMISSION
This objection concerns the presence of the union agents in
the Employer’s facility without specific permission on the day
of the election while either traveling to the polling area or wait-
ing to go into the polling area for the beginning of the second
session of balloting. The hearing officer found nothing objec-
tionable in such conduct. For the reasons set forth by the hear-
ing officer, I agree.
In one of its exceptions based on this alleged conduct, the
Employer takes issue with the hearing officer’s statement that
there was no evidence that any employees even saw the Union
representatives walking unescorted. Support for this exception
is based on a Union agent’s testimony that she observed people
working in the facility. The Employer asserts that “if they could
see them, they could see the four union representatives.” Ad-
mittedly this possibility exists—however, evidence that these
workers ever, in fact, noticed the Union representatives is lack-
ing. If this is a necessary element of the objection, it was the
Employer’s burden to establish it. I do not, however, view it as
having any great import. If workers saw the union representa-
tives and did happen to know who they were, they would, at
most, have seen them walking towards the area in which the
election was to take place just before the election was to be
held. I fail to see how this in anyway could impact the election.
The same applies to the union representatives standing in the
area of the stairs leading to the election site, perhaps briefly
talking with a tow motor operator and to the Union’s observer.
III. UNION COMMITTEE PERSON ADVISING AN EMPLOYEE THAT HE
WAS INELIGIBLE TO VOTE
For there reasons set forth in her report, I agree with the
hearing officer’s findings and conclusion with respect to this
objection. Whatever impact committee member Edward Frye
had on employee Tim McMillan (whose actual first name Frye
recently learned is Leon) by initially advising him that he was
not eligible to vote was mitigated by Frye further advising
McMillan that he needed to go to the human resources office to
check on the matter. I take administrative notice that the elec-
tion records in this matter reflect that there was only one
McMillan eligible to vote—Leon T. McMillan—and that he
did, in fact, vote.7 Even were I not to take such notice, it is the
burden of the Employer to prove its objection, which in this
case would include that Frye’s action had some impact on the
election. It did not in any manner attempt to prove that

unionized facility operated by the Employer. Much of the Employer’s
campaign literature was meant to diminish the impact of such argu-
ments and included items such as the management-right clause pertain-
ing to the unionized facility and the statement that the Union had
caved-in and agreed to virtually all of the Employer’s demands in the
last round of bargaining.
7 The Board may take administrative notice of its own files. Lord
Jim’s, 264 NLRB 1098 (1982). Moreover, the Board need not await a
motion by a party to take administrative notice of its own documents.
Reno Hilton, 319 NLRB 1154, 1157 fn. 16 (1995). See also Piper In-
dustries, 212 NLRB 474, 475 (1974), where a Regional Director relied
on election records which indicated the number of employees who had
voted in different areas as part of his investigation of objections.
McMillan did not vote and there was no reason offered why it
did not request any records on this point or could not have
called McMillan as a witness. The Employer therefore did not
prove that this Objection impacted the election.
While the Employer speculates that statements such as that
made by Frye to McMillan were likely to have been made to
other employees, it offers no proof whatsoever to support such
speculation. Instead it relies on Board authority involving
threats which can reasonably be expected to be discussed, re-
peated, and disseminated among employees. The instant situa-
tion does not involve a threat nor does it involve any statement
which, if other employees learned of it, would in any way dis-
suade them from voting or influence which way they would
vote.
IV. CONVERSATIONS OF EMPLOYEES WAITING TO VOTE
For the reasons set forth in her report, I agree with the hear-
ing officer’s findings and conclusion with respect to this objec-
tion. The Employer in its exceptions and supporting-brief, at-
tempts to inflate a single instance when prospective voters be-
gan talking loudly and were admonished by the Board agent
conducting the election, and a single statement regarding stand-
ing in an unemployment line or flipping hamburgers (obviously
meant to be a humorous anti-union quip), to such a degree that
it would justify meeting the Board’s standard for third-party
conduct warranting setting aside the election.
As the hearing officer correctly noted, the Board’s Milchem
rule, raised by the Employer in its exceptions and brief,8 applies
to conduct of the parties, not that of employees. See Crestwood
Convalescent Hospital, 316 NLRB 1057 (1995). “Third-party
conduct must be ‘so disruptive’ as to require setting aside the
election.” Boston Insulated Wire & Cable Co., 259 NLRB 1118
fn. 11 (1982).9 Thus, Milchem’s scope does not encompass
sustained conversations between voters. Although apparently
employees waiting in line to vote in the instant case did talk
among themselves, there is no prohibition on such conversa-
tions and such are not grounds for setting aside an election. See,
e.g., Masoneilan International, 223 NLRB 965, 971 (1976);
Dumas Bros. Mfg. Co., 205 NLRB 919, 929 (1973). Moreover,
a loud outburst in the polling area by a nonagent, even involv-
ing a partisan message, does not rise to the level of objection-
able third-party conduct.10

8 See Milchem, Inc., 170 NLRB 362 (1968).
9 In its brief the Employer cites Boston Insulated Wire & Cable Co.
for the proposition that in carrying out its duty to safeguard the election
process, the Board is extremely zealous in preventing conduct which
intrudes upon the actual conduct of the election. That case involved the
conduct of a party. The Board also noted in that case:
While the Board seeks to establish election conditions as ideal as pos-
sible, “elections must be appraised realistically and practically, and
should not be judged against theoretically ideal, but nevertheless arti-
ficial, standards.” [Footnote omitted.] A representation election is of-
ten the climax of an emotional, hard-fought campaign and it is unreal-
istic to expect parties or employees to refrain totally from any and all
types of electioneering in the vicinity of the polls.
10 See, e.g., NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 329
(5th Cir. 1991) (election results upheld even though union won by only
single vote and one of employer’s objections based on presence of two
terminated employees in polling area who were cutting up and laughing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD682
With respect to the statement regarding an unemployment
line or flipping hamburgers, such attempts at levity, uttered by
a nonagent, are not considered to rise to the level of objection-
able conduct.11
V. UNION OBSERVER’S WEARING OF A PROUNION T-SHIRT
For the reasons set forth in her report, I agree with the hear-
ing officer’s findings and conclusion with respect to this objec-
tion. In essence, she concluded that the back of the nion ob-
server’s T-shirt, which contained a prounion message, was not
at any time visible to a voter. I also note, as acknowledged by
the Employer in its brief, that even were any voter to have no-
ticed the back of the observer’s shirt, “the mere display of par-
tisan insignia by observers during an election without more,
does not warrant setting aside an election.” VanLeer Containers
v. NLRB, 841 F.2d 779 (7th Cir. 1988). Thus, the wearing of
prounion T-shirts by observers has specifically been found not
to constitute the basis for a valid objection. Queen Kapiolani
Hotel, 316 NLRB 655, 668 (1995).
Nevertheless, the Employer argues “that the cumulative ef-
fect of the Union’s propaganda combined with other objection-
able conduct demonstrated at the hearing is sufficient to over-
turn the election.” The Employer claims that the observer’s
wearing of the T-shirt is part of this “pattern of conduct exhib-
ited by the Union.” I see no pattern of which the wearing of the
T-shirt was a part. Indeed, the Employer has failed to demon-
strate that the Union engaged in any even marginal improper
conduct which could provide any context for elevating the sim-
ple wearing of the shirt to objectionable conduct.
VI. THE CUMULATIVE EFFECT OF THE CONDUCT
The Employer attempts to argue that the cumulative effect of
the conduct described in its objections interfered with employ-
ees’ right of free choice. It cites NLRB v. Monark Boat Co., 713
F.2d 355, 360 (8th Cir. 1983), for the proposition “even where
an incident of misconduct, not insubstantial in nature, is insuf-
ficient by itself to show that an election was not an expression
of free choice, two or more such incidents, when considered
together in the totality of the circumstances, may be deemed
sufficient to support such a conclusion.” While this is so, the
Employer still bears the burden of establishing that the cumula-
tive conduct found to have occurred interfered with the free
choice of employees to such a degree that it would materially
affect the results of the election. In the instant case, the Em-

and told an employee, “You know damn well the way you are supposed
to vote,” and told another employee the same and that they should
“stick together”) Kux Mfg. Co. v. NLRB, 890 F.2d 804, 807 (6th Cir.
1989) (employee in the polling area yelled two or three times that it
was employees’ last chance to change their minds and vote for the
union).
11 See Kux Mfg. Co., id at pp. 807 and 810 (union supporter yelled
to group of employees on their way to vote that he would pay them $50
to vote for the union would have been taken as a joke); Masoneilan
International, 223 NLRB at 971 (momentary laughter by one or two
employees in connection with a remark by one of them in the voting
line about “25 paid holidays,” was intended and understood as a joke,
and did not interfere with employees’ freedom of choice).
ployer has failed to raise any incidents of objectionable mis-
conduct, and has failed to establish that the conduct found to
have occurred could materially effect the results of the election.
VII. EVENTS SURROUNDING THE RECEIPT OF PETITIONER’S EXHIBIT
NO. 2; ALLEGATIONS OF HEARING OFFICER BIAS; AND THE
EMPLOYER’S REQUEST FOR A NEW HEARING
The Employer complains of the manner in which Petitioner’s
Exhibit 2, a packet of Employer campaign material given to
employees, was admitted into the record. The material was
made an exhibit and identified on the last day of the initial
hearing in this matter. The Union indicated its intent to have it
admitted. The Employer challenged whether a sufficient basis
had been laid.
The Union then laid a foundation for its authenticity. The
documents were utilized by the Union in examining the witness
who introduced them and a subsequent witness thereafter. The
documents were not, however, formally received into evidence
prior to the closing of the record and the Employer’s departure
from the hearing room. When the court reporter advised the
hearing officer that the packet had not been admitted, she re-
opened the record and, despite the absence of the Employer,
admitted the documents over the Employer’s earlier objections.
The Employer thereafter filed an emergency appeal of the hear-
ing officer’s admission of the exhibit. The Employer, in a sub-
sequent motion, requested that the hearing be set aside in its
entirety and rescheduled under a different hearing officer on the
grounds that the hearing officer’s conduct in reopening the
record and admitting the exhibit and her conduct toward the
Employer’s witnesses during the hearing demonstrated bias that
mandated a change in hearing officer. Thereafter, the Em-
ployer’s motion to set aside the hearing and reschedule with a
new hearing officer was denied. The appeal on the admission
was sustained and an Order issued reopening the record for the
limited purpose of considering the admissibility of Petitioner’s
Exhibit 2. At the reconvened hearing the Employer did not
challenge the authenticity of the documents. A more complete
background on the documents was developed and they were
admitted. As part of the reconvened proceeding, the Employer
called a witness to address certain aspects of the documents.
In its exceptions, the Employer renews its call for a new
hearing in the instant case should a new election not be ordered.
It has not, however, presented any valid reason for doing so. It
claims a denial of due process because “the Employer presented
a good portion of its case based on the now incorrect assump-
tion that Petitioner’s Exhibit 2 was not admitted.” I note, how-
ever, the documents were not identified in the record until well
after the Employer had finished its case, as part of the Union’s
case. In addition, the Employer has not explained how it was
prejudiced since it was given full opportunity to participate in
the reconvened hearing. I see no lack of due process under
these circumstances.
The Employer also relies upon the argument that a record
may be reopened for the receipt of evidence only if the evi-
dence is newly discovered. As noted by the Employer in its
brief, this is a requirement for evidence which could have been
discovered before the proceeding had the movant seeking to
introduce it exercised reasonable diligence. Fitel/Lucent Tech-
SNE ENTERPRISES 683
nologies, Inc., 326 NLRB 46 fn. 1 (1998). The instant case is
distinguishable from a situation where a party due to lack of
diligence fails to discover relevant evidence until after a hear-
ing closes and must suffer the effect of its lack of efforts. In the
instant case the documents were produced at the hearing, the
party opponent was put on notice that they were going to be
introduced, and they were actually used in the examination of
witnesses.12 The exhibit’s nonadmission was admittedly over-
looked by the hearing officer who sought to correct the over-
sight by reopening the record and admitting the document over
what she perceived to be the Employer’s objection. Any preju-
dice that resulted from this being done in the absence of the
Employer was dealt with by allowing the Employer to appear at
the reconvened proceeding. Therefore, no prejudicial error
occurred.
The Employer claims that the hearing officer’s action with
respect to Petitioner Exhibit No. 2 shows bias. I fail to see it as
indicating anything but her attempt to rectify an oversight.
The Employer also argues that the hearing officer’s treat-
ment of witnesses was somehow inappropriate and showed
bias, and that this further adds to the need for a new hearing.
The hearing officer’s actions specifically pointed out by the
Employer in the record appear to be no more than the hearing
officer attempting to pin down what actually occurred, rather
than allowing witnesses to summarize or merely offer an im-
pression. This is certainly appropriate conduct for the trier of
fact and I find no bias demonstrated by such action.

12 See, e.g., Glendale Associate, Ltd., 335 NLRB 27, 33 fn. 4
(2001) (no party sought to introduce a relevant settlement agreement at
the hearing. The ALJ later decided that the document should be made
an exhibit and reopened and reclosed the record to admit it.)
VII. CONCLUSION
Based on the foregoing, and having carefully reviewed the
entire record, the hearing officer’s report and recommendations
and the exceptions and arguments made by the Employer in its
brief, I adopt the hearing officer’s recommended order overrul-
ing the objections and deny the Employer’s request for a new
hearing.
ORDER
It is hereby ordered that the Employer’s objections to the
election be overruled in their entirety. Accordingly, as the Peti-
tioner has received a majority of the votes cast, I will issue an
appropriate Certification of Representative.
CERTIFICATION OF REPRESENTATIVE
IT IS HEREBY CERTIFIED that a majority of the valid ballots has
been cast for United Steelworkers of America, AFL–CIO–CLC
and the labor organization is certified as the exclusive collec-
tive-bargaining representative of the employees of the Em-
ployer in the following unit within the meaning of Section 9(c)
of the National Labor Relations Act, as amended:
All production and maintenance employees employed by the
Employer at its 750 West 10th Avenue, Huntington, West
Virginia facility, but excluding temporary employees, leased
employees, sales and marketing employees, engineers, confi-
dential employees, salaried employees, office clerical em-
ployees, and all professional employees, guards, the lead per-
sons and all other supervisors as defined in the Act.