NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,565, DUNHAM’S ATHLEISURE CORPORATION and LOCAL 51, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO., (Nov. 30, 1994), National Labor Relations Board, (Nov 30, 1994)

DUNHAM’S ATHLEISURE CORPORATION and LOCAL 51, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO.

315 NLRB No. 94.Case No. 7-RC-20191. November 30, 1994

Before Stephens, Devaney and Browning.

Election Objections--Board Agents--Ballot Box Out of Sight.--An employer’s representation election objection, based upon allegations that a ballot box was hidden from election observers’ view during a portion of the voting procedure, was overruled. There was no evidence of tampering, fabrication, misplacement or loss of blank ballots, nor was there any issue raised concerning the accuracy or integrity of the ballot count. Section 9(c).

Back reference: ¶2795.35.

Election Objections--Fact Finding--Third Party Interference.--On the facts, an employee’s comments regarding the possible ramifications of a challenged ballot procedure, made during a representation election, were not so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible. Section 9(c).

From Text of Board’s Decision

The National Labor Relations Board, by a three-member panel, has considered objections to an election held January 7, 1994, and the hearing officer’s report (pertinent sections of which are attached) recommending disposition of them. The election was conducted pursuant to a Decision and Direction of Election. The tally of ballots shows 61 for and 28 against the Petitioner, with 28 challenged ballots, an insufficient number to affect the results.

The Board has reviewed the record in light of the exceptions and brief, has adopted the hearing officer’s findings [1] and recommendations, as modified below, and finds that a certification of representative should be issued.

1. In its exceptions, the Employer contends, inter alia, that the hearing officer erred in finding that no objection was filed concerning the security of the ballot box. The Employer asserts that this matter is encompassed within Objection 18, which addresses events occurring in the voting room. On the merits of this objection, the Employer claims the ballot box was left virtually unattended for more than two-thirds of the voting period.

The record indicates that the line of employees waiting to vote was situated between the observers’ table and the ballot box. When the line was at its longest and deepest, it interfered with the observers’ ability to see the ballot box. When there were only a few employees in line, the observers had no trouble seeing the ballot box.

We agree with the Employer that Objection 18 fully encompasses this allegation. With regard to the merits of the objection, when the integrity of the election process is challenged, the Board must decide whether the facts raise a “reasonable doubt as to the fairness and validity of the election.” Allied Acoustics, [1991-92 CCH NLRB ¶16,395] 300 NLRB 1181 (1990). There is no evidence that the ballot box was hidden totally from view at all times. The record shows that any obstruction occurred intermittently during the polling period, especially as groups of employees were released from work to vote. There is no evidence of “tampering, fabrication, misplacement, or loss of the [blank] ballot[s], or any factual issue concerning the accuracy or integrity of the [ballot count].” Allied Acoustics, supra at 1181. In other words, there is no evidence that the ballot box was “stuffed” at any time when the observers could not see it, because there is no discrepancy between the approximate number of employees eligible to vote (137) and the number of valid votes counted plus challenged ballots (117). Finally, there is no evidence or even an allegation of misconduct or interference with the voting process by employees waiting in line to vote. For all these reasons, we overrule Objection 18. See Polymers v. NLRB, [60 LC ¶10,265] 414 F.2d 999, 1004 (2d Cir. 1969). (“A per se rule of [setting an election aside if there is a] possibility [of irregularity] would impose an overwhelming burden in a representation case. If speculation on conceivable irregularities were unfettered, few election results would be certified, since ideal standards cannot always be attained.”) [2]

2. In excepting to the hearing officer’s recommendation that Objections 5 and 7 be overruled, the Employer contends, inter alia, that even if the statements in question were not made by agents of the Petitioner, the hearing officer should have analyzed them under the third-party standard. We agree with the hearing officer that there is no record evidence that any person who made the statements in issue is a general agent of the Petitioner. Applying the third-party standard, we find that the comments in question, pertaining to the possible ramifications of the challenged-ballot procedure, were not so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible. See Orleans Mfg. Co., 120 NLRB 630, 633-634 (1958).