Wald Sound, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 366 (N.L.R.B. 1973)

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wald Sound , Inc. and Miscellaneous Warehousemen,
Drivers & Helpers Local 986, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America , Petitioner. Case 31-RC-2210
April 30, 1973
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was con-
ducted November 17, 1972, under the direction and
supervision of the Regional Director for Region 31
among the employees in the stipulated unit described
below. At the conclusion of the election, the Regional
Director served on the parties a revised tally of ballots
which showed that, of approximately 165 eligible vot-
ers, 178 cast ballots, of which 94 were for, and 57
against, the Petitioner, 1 ballot was void, there were
5 challenged ballots remaining undetermined, and 21
challenges were sustained. The remaining challenged
ballots were insufficient in number to affect the re-
sults of the election. The Employer filed timely objec-
tions.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of Pro-
cedure, Series 8, as amended, the Regional Director
conducted an investigation and on January 5, 1973,
the Regional Director issued and duly served on the
parties his Report on Objections (pertinent portions
attached as Appendix) recommending that the objec-
tions be overruled and that Petitioner be certified as
the exclusive collective-bargaining representative in
the stipulated unit. Thereafter, the Employer filed
timely exceptions to the Regional Director's report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated and we find that the fol-
lowing employees constitute an appropriate unit for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men, truck drivers, leadmen and leadladies em-
ployed at the Employer's plant at 11131 Dora
Street, Sun Valley, California. Excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
The Board has considered the Regional Director's
report and the Employer's exceptions and brief and
the entire record in this case and hereby adopts the
Regional Director's findings , conclusions , and recom-
mendations.'
As the Petitioner has received a majority of the
valid ballots cast, we shall certify it as the exclusive
bargaining representative of the employees in the unit
found appropriate.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that as a majority of the valid
ballots has been cast for Miscellaneous Warehouse-
men, Drivers & Helpers Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, pursuant to Section 9(a)
of the Act, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of
employment, or other conditions of employment.
MEMBER KENNEDY , dissenting:
I do not share my colleagues ' opinion that the ex-
ceptions herein "raise no material and substantial is-
sues ." I do not think this case can be distinguished in
principle from D & N Delivery Corporation, 201
' In our opinion the exceptions raise no material and substantial issues of
fact or law which would warrant reversal of the findings and recommenda-
tions of the Regional Director
While we view the Board agent 's choice of language as unfortunate, and
to be avoided, we agree with the Regional Director's finding that the lan-
guage, viewed in context , simply indicates that in the Board agent 's view the
new Board agents who accompanied her were participating in an election
presenting unusual complications Moreover, there is no way in which her
remark , made after the ballots had been cast , could have affected the election
results D & N Delivery Corporation, 201 NLRB No 37, is distinguishable. In
that case the Board was concerned that the Regional Director 's action in
counting the ballots prior to the filing of the request for review in breach of
the Rules and Regulations may have created the appearance that the Board
had prejudged the issues as to the eligibility of the trainees Here the Employ-
er does not contend that the Board agent's remark indicated that the Board
may have prejudged any of the issues To the contrary, the Employer states
that while the only remaining issue, the challenges , remained technically
determinative this issue could not have affected the outcome of the balloting
The Employer notes that the names of more than half of the 39 challenged
voters were not on the Excelsior list and that these employees were conceded
by the Employer to be ineligible to vote (and that it agreed with 22 of the
challenges). As the margin was 38 , the remaining challenges were insufficient
to affect the outcome of the election
203 NLRB No. 61
WALD SOUND, INC. 367
NLRB No. 37, in which I joined my two colleagues
on this panel in ordering a new election because the
Regional Director's breach of the Board's Rules and
Regulations may have created the appearance that the
Board had prejudged the issues with respect to certain
challenged ballots.' It seems to me that we cannot
escape the conclusion that the Board agent appeared
to have prejudged the election results by her an-
nouncement in the presence of the parties, "You've
got yourself a winner." 3 This statement was made at
a time when the results were inconclusive by reason
of the fact that the unresolved challenges were deter-
minative of the election. I cannot accept the conclu-
sion of the Regional Director that the reasonable
interpretation of the "winner" remark is that the new
Board agents "had partaken in an election presenting
unusual complications." Is the Employer compelled
to accept the Board agent's explanation to the Re-
gional Director as to what she intended by her "unfor-
tunate" language without even a hearing? I think not.
The Board agent's comment does not inspire confi-
dence in the impartiality of the Board's election pro-
cesses . Plainly, her conduct was a departure from the
standards which the Board seeks to maintain. See
Athbro Precision Engineering Corp., 166 NLRB (1967),
where the Board stated:
The Board in conducting representation elec-
tions must maintain and protect the integrity and
neutrality of its procedures. The commission of
an act by a Board Agent conducting an election
which tends to destroy confidence in the Board's
election process, or which could reasonably be
interpreted as impugning the election standards
we seek to maintain, is a sufficient basis for set-
ting aside that election.
Chief Judge Bailey Aldridge expressed the view of
the First Circuit in N. L. R. B. v. A thbro Precision Engi-
neering Corp., 423 F.2d 573, 575 (1970), as follows:
We cannot think that the Board, any less than a
court, is uninterested in maintaining, as well as
fairness, the appearance of fairness. The Board's
public image provides the basis for its existence.
The re-running of an occasional election is a
small price to pay for the preservation of public
respect.
When unions and employers invest substantial
time, effort, and money in an organizational cam-
paign, it is incumbent upon the Board to conduct an
election in a manner which inspires confidence in the
impartiality and competence of the Board and its
2 This case arises in the same region as D & N Delivery Corp, supra It is
also the same region in which Alladin Plactics, Inc, 182 NLRB 64 , arose.
I See the attached Appendix for a full statement of the circumstances
surrounding the "winner" remark
agents. There is no function or mission of this agency
of greater importance than running fair elections.
I am unwilling to ignore the conduct of the Board
agent in this case. Nor am I willing to accept the
explanation of the new employees as to their subjec-
tive understanding of the "winner" remark. Either the
election should be voided and a new one conducted,
or a hearing held.
APPENDIX
The objections in their entirety are set forth in the
indented paragraphs below.
(1) Immediately following the physical counting
of the ballots on November 17, 1972, and in the
presence of Peter Wald, president of the Employ-
er, Howard Hay of Paul, Hastings , Janofsky &
Walker, one or both of the employees of the Em-
ployer who acted as observers selected by the
Employer, Rudy Heredia, a representative of Pe-
titioner, and two other individuals identified as
attorneys newly employed by the 31 st Region,
Field Examiner Jerilou H. Cossack, said appar-
ently directing her statement to the two new
Board lawyers, that they were very "fortunate"
or "lucky" in that this was their first experience
with an election and that they had gotten them-
selves a "winner."
When Field Examiner Cossack made the above
remark, the count showed 88 votes for Petitioner,
50 votes against Petitioner, and 39 challenged
ballots, one of which was cast by Tobias L. Guer-
rero, a former employee of the Employer who is
alleged in Case No. 31-CA-3291 to have been
discriminatorily discharged. The election thus
was an apparent winner for the Petitioner. It was
in no sense a winner for the Employer.
Thus, the reference to the election by Field Ex-
aminer Cossack as a "winner" constituted a par-
tisan characterization which clearly violates the
principles expressed in Athbro Precision Engi-
neering Corp., 166 NLRB 966 (1967) as follows:
The Board in conducting representation elec-
tions must maintain and protect the integrity
and neutrality of its procedures. The commis-
sion of an act by a Board Agent conducting an
election which tends to destroy confidence in
the Board's election process, or which could
reasonably be interpreted as impugning the
election standards we seek to maintain, is a
sufficient basis for setting aside that election.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The investigation discloses that two recently em-
ployed field attorneys accompanied Field Examiner
Cossack to the election so that each might observe his
first Board-conducted election and assist in its con-
duct . Although the polling itself was uneventful, ex-
cept for the large number of challenged ballots, the
preelection conference was marked by the late arrival
of the Petitioner representative , his demand that the
election be delayed to afford him time to recruit a
second observer , and his demand for changes in the
physical voting arrangements at a time when it was
too late to effectuate such changes . The postelection
meeting was marked by protests from both parties
concerning the temporary absence of the observers
and the refusal of the Petitioner 's representative to
agree to the resolution of any challenges . It was in this
context that Mrs. Cossack , after the votes had been
counted , remarked to her associates that they were
fortunate because this was their first case and they
had gotten "a winner ." Mrs. Cossack 's associates un-
derstood her remark to mean that they had partaken
in an election presenting unusual complications. It is
difficult to see what other implication could rea-
sonably have been attached to her remarks , particu-
larly inasmuch as the results of the election at that
time were indecisive . Moreover , there is no way in
which her remarks , made of ter all the ballots had been
cast , could in any way have affected the election or its
results . The [Regional Director] concludes , therefore,
that the objection is without merit.
(2) Immediately following the closing of the
polls at 4:00 p .m. on November 17, 1972, and
before the ballot box was opened to count the
ballots , Field Examiner Cossack dismissed the
observers for both the Employer and the Union.
A representative of the Employer became aware
of the fact that the two observers selected by the
Employer were leaving the premises and they
were instructed by a representative of the Em-
ployer to return for the counting of the ballots.
The individuals referred to under objection (1)
above convened, following the closing of the
polls, in the office of Peter Wald, the president of
the Employer . Mr. Heredia , the representative of
Petitioner , objected to the counting of the ballots
when the observer appointed by the Union was
not present and had been dismissed . Mr. Hay,
representing the Employer , agreed that the ob-
servers should not have been dismissed . Over Mr.
Heredia's objection , Field Examiner Cossack
proceeded to count the ballots . The foregoing
clearly violated the procedures required by the
Board in the conduct of elections , and specifical-
ly those set forth in Section 11340.2 of the
Board ' s Field Manual.
The investigation discloses that at 4 p .m., the sched-
uled closing time , Mrs. Cossack announced that the
polls were closed and the observers then signed the
Certification on Conduct of Election . One of the
Employer's observers , who speaks Spanish but little
or no English , asked the bilingual Employer observer
if he could leave . His request was relayed to Mrs.
Cossack and she replied that all of the observers could
leave . The Petitioner 's observer left the Employer's
premises immediately . He states that he did not ask
for or receive permission to leave but left because the
Petitioner representative had not asked him to stay
after the polls closed . The two Employer observers
walked to the company parking lot where the
Employer's president , whose office window overlooks
the parking lot, noticed them about to drive away and
directed them to come to his office instead. The
Employer's attorney went to the polling area , arriving
there a few minutes after 4 p.m. while the Board
agents were still folding the collapsible voting booths
and packing away the remaining election materials.
The Board agents, accompanied by the Employer's
attorney , then carried the ballot box to the office of
the Employer 's president . The Petitioner representa-
tive and the two Employer observers were present in
the office when they arrived . The Petitioner represent-
ative expressed concern because of the absence of his
observer but when efforts to locate the Petitioner's
observer proved unsuccessful, the ballot box was
opened and the ballots counted . One Employer ob-
server was released after the count at the request of
the Employer's president , the other Employer observ-
er remained until after the Board agents left.
Upon careful consideration of the facts disclosed
by the investigation , none of which is in dispute, the
[Regional Director] finds that the procedures fol-
lowed did not in any way violate procedures required
in the conduct of elections or, specifically, the proce-
dures set forth in Section 11340.2 of the Board's Inter-
nal Instructions and Guidelines.
It will be noted that the Board agent did not prohib-
it the observers from staying after the close of the
polls, she merely told them they could leave when the
Employer's bilingual observer made it clear that they
were anxious to do so . The Employer was in no way
prejudiced because , in fact , its observers were present
for the counting of the ballots . There is no rule or
requirement that the persons who act as authorized
observers in the counting and tabulating of ballots be
the same individuals as those who are the authorized
observers in the conduct of the balloting . It is noted
in the present case that, although both of the
Employer 's election observers were present at the
count , the tally of ballots was signed by the
Employer's attorney as authorized observer in the
WALD SOUND, INC. 369
counting and tabulating of ballots . There is no allega-
tion or evidence that the security of the ballot box was
in any way compromised , and the [Regional Director]
finds that its security was protected at all times. The
[Regional Director] concludes that the second of the
Employer's objections is without merit.
(3) The Employer also objects to conduct by rep-
resentatives of Petitioner which affected the re-
sults of the election, including unlawful promises
and threats and misrepresentation of facts.
The Employer has failed to offer any evidence in
support of its third objection and no such evidence
has been uncovered in the course of the investigation.
The objection, therefore, is without merit.