University of Chicago

National Labor Relations Board - Board Decisions

Dec 15, 2017

13-RC-198365 (N.L.R.B. Dec. 15, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
UNIVERSITY OF CHICAGO
Employer
and Case 13-RC-198365
TEAMSTERS LOCAL 743
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Supplemental
Decision and Certification of Representative raises substantial issues with respect to
Objection 2 that can best be resolved after a hearing. Accordingly, the Request for
Review is granted with respect to Objection 2, and the case is remanded to the
Regional Director for consideration of Objection 2. In all other respects, the Request for
Review is denied.1

1 Contrary to our dissenting colleague, we find that the Employer has shown that it could
produce evidence at a hearing that, if credited, may warrant setting aside the election.
Thus, the Employer’s offer of proof identifies witnesses who directly observed alleged
surveillance by the Petitioner’s agents at each of the two voting locations, in addition to
photographs of the agents and the signs they displayed. The offered testimony
indicates that the Petitioner’s agents stationed themselves where voters had to pass in
order to vote at the SSA location. A hearing would help determine whether, among
other things, the agents at the Regenstein location likewise stationed themselves in
areas voters would be forced to pass.
Our decision to direct a hearing finds support in Transcare New York, Inc., 355
NLRB 326 (2010). In that case, the Petitioner offered to produce evidence that, among
other things, managers stationed themselves in view of voters accessing the polling
sites. Further, the Petitioner allegedly sent an email to a Board agent complaining
about the conduct. The Board found, as we find on similar offered proof in this case,
that there was sufficient evidence warranting a hearing.
Houston Shell and Concrete Division, 118 NLRB 1511 (1957), relied on by our
dissenting colleague, does not warrant a different result. That case involved allegations
that union representatives conversed with voters "on company premises," but not
necessarily in the polling place, before the voting began or "the morning that the voting
started," and that they were in a polling place when the election began but not
necessarily during the election. The Board found the conduct unobjectionable. Here,
by contrast, the Petitioner’s agents allegedly stationed themselves just outside the two
voting locations during the election.
Chairman Miscimarra dissented from the Board’s prior denial of the Employer’s
pre-election Expedited Request for Review and Motion to Stay the Election and/or
Impound Ballots, in which the Employer raised issues similar to those presented in
PHILIP A. MISCIMARRA, CHAIRMAN
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., December 15, 2017.
MEMBER PEARCE, dissenting:
Contrary to my colleagues, who grant the Employer’s request for review of the
Regional Director’s dismissal of the Employer’s Objection 2, and remand that objection
to the Regional Director for a hearing, I would deny the Employer’s request for review in
its entirety. The Employer has not established any basis under Section 102.67(d) of the
Board’s Rules and Regulations for granting its Request for Review, nor has it
“present[ed] evidence that raises substantial and material factual issues” warranting a
hearing. Park Chevrolet-Geo, Inc., 308 NLRB 1010, 1010 fn. 1 (1992).
The Employer’s Objection 2 alleged that agents of the Petitioner stationed
themselves in locations voters would be forced to pass in order to vote. I agree with the
Regional Director that the evidence described in the Employer’s offer of proof does not
constitute grounds for setting aside the election if introduced at a hearing. Even

Objections 3 and 4, and as to these issues, Chairman Miscimarra adheres to the views
stated in his prior dissent. Nevertheless, Chairman Miscimarra concurs in the denial of
review with respect to Objections 3 and 4 on the basis that the Employer’s more recent
request for review fails to identify extraordinary circumstances warranting
reconsideration of the Board’s prior action with respect to these matters.
Member Emanuel did not participate in the Board’s denial prior to the election of
the Employer’s Expedited Request for Review and Motion to Stay the Election and/or
Impound Ballots, or, in the Alternative, For Remand to the Regional Director, and does
not reach the merits of the issues raised there.
Member Emanuel further notes that he would, in a future appropriate case,
consider whether and under what circumstances students qualify as “employees” within
the meaning of Section 2(3) of the Act.
Member Kaplan is not on the panel and took no part in deciding this case.
.
accepting the Employer’s assertion in its offer of proof that three of the Petitioner’s
representatives stood outside the main entrances to both of the libraries during the
polling, this would not warrant setting aside the election. The mere presence of union
representatives outside a building where polling is taking place, without proof of
electioneering or other improper conduct, does not constitute objectionable conduct.
See Houston Shell and Concrete Division, McDonough Corp., 118 NLRB 1511, 1516
(1957). Further, even if I were to apply Nathan Katz Realty, LLC v. NLRB, 251 F.3d
981, 993 (D.C. Cir. 2001), I would not find that the Petitioner’s conduct was
objectionable. Unlike in that case, the evidence described in the Employer’s offer of
proof does not establish that the Petitioner’s representatives were located in a no-
electioneering zone, that they engaged in conduct contrary to the instructions of a Board
agent, or that employees had to pass by the Petitioner’s representatives in order to
vote.
Because the alleged conduct, even if proven, would not warrant setting aside the
election, I find that the Regional Director properly overruled the objections without a
hearing. Accordingly, I dissent.

MARK GASTON PEARCE, MEMBER