Fresenius USA Manufacturing, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 25, 2007

02-RC-023145 (N.L.R.B. May. 25, 2007)

JD(NY)–25–07
Chester, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FRESENIUS USA MANUFACTURING, INC.
Employer
and Case No. 2-RC-23145
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS LOCAL 445
Petitioner
Donald L. Sapir, Esq. and Cristina Fahrbach, Esq.,
White Plains, NY for the Petitioner.
Thomas G. Servodidio, Esq. and Brian Crowner, Esq.,
Philadelphia, PA for the Employer.
Susannah Z. Ringel, Esq., New York, NY Counsel
for the Regional Director, Region 2, National Labor Relations Board
RECOMMENDED DECISION ON OBJECTIONS
STATEMENT OF THE CASE
On September 5, 2006 1 International Brotherhood of Teamsters Local 445, (the Union
or Petitioner), filed a Petition seeking to represent certain employees employed by Fresenius
USA Manufacturing, Inc. (the Employer or Fresenius) at its facility located in Chester, New York.
The parties entered into a Stipulated Election Agreement, approved on October 6, providing for
an election to be conducted in two separate bargaining units, one consisting of drivers and the
other warehouse employees. The election was conducted on November 3. The tally of ballots
was identical for both units. In each unit there were 16 eligible voters, nine votes for Petitioner,
seven votes against, and no challenges.
On November 13, the Employer filed timely Objections to the election. On December 18,
the Director issued her report, recommending that all of the Employer's Objections be overruled,
and recommending that Petitioner be certified.
On January 12, 2007, the Employer filed timely Exceptions to the Director's Report and
Recommendations. On February 28, 2007, the Board issued an Order, in which it adopted the
Director's findings and recommendations to dismiss Objections 7 through 10 filed by the
Employer, but concluded that Objections 1-6 regarding the Board agent's conduct raised
"substantial and material factual issues warranting a hearing." On March 13, 2007 the Director,

1 All dates hereafter are in 2006, unless otherwise noted.
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issued a Notice of Hearing on Objections, ordering a hearing before an Administrative Law
Judge for the purposes of receiving testimony with respect to the issues raised by Objections 1
through 6 in the Employers Objections. The hearing was conducted before me on April 10,
2007, in New York, New York. Briefs have been filed by the Employer and the Petitioner and
have been carefully considered. Based upon the entire record, including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. THE OBJECTIONS
Objections 1 through 6, filed by the Employer, alleges as follows:
Fresenius USA Manufacturing, Inc. (Fresenius) hereby objects, for the reasons
set forth below, to the conduct of the representation election held on November 3, 2006,
and to certain conduct affecting the results of the election.
I. BACKGROUND
A Representation election was held at Fresenius's Chester, New York facility on
November 3, 2006 from 1:00 p.m. to 4:00 p.m. Pursuant to a Stipulated Election
Agreement, the election consisted of two separate voting units: (Unit A) all full-time and
regular part-time drivers employed by the Employer located at 68 Tetz Road, Chester,
NY; and (Unit B) all full-time and regular part-time warehouse workers, warehouse leads,
administrative assistants and transportation routers employed by the Employer located
at 68 Tetz Road, Chester, NY. Both proposed bargaining units voted at the same place
during the same voting period, casting their ballots in the same box. Employees in Unit
A were supposed to have voted on green ballots and employees in Unit B were
supposed to have voted on yellow ballots. The Board agent in charge of the election
was Mr. Howard Shapiro ("Board agent".)
II. OBJECTIONS TO THE CONDUCT OF THE ELECTION
1. Fresenius objects to the confusion and potential miscast ballots caused by the
Board agent's inability to differentiate between the colors of the ballots, and the failure of
the Board agent to use two separate ballot boxes for the two separate voting units.
During the election polling time, the Board agent stated to the party observers that he
was color-blind, that he could not differentiate between yellow and green - the colors of
the ballots for the two voting units, and that when he was diagnosed as color-blind
around the age of 35 years old, he was unable to identify marks in colored boxes in a
vision test. In addition, rather than adding a level of protection from miscast ballots, the
Board agent used only one ballot box to collect the ballots from the separate voting
units. During the election, the Board agent erroneously provided an incorrect colored
ballot to one or more employees (i.e., he initially handed an employee a yellow ballot,
when the employee should have received a green ballot and thereby required the
assistance of the party observers to distribute the ballots). The confusion caused by the
Board agent's inability to differentiate colors may have undermined an employee's ability
to vote in the correct bargaining unit, or to exercise an uncoerced and reasoned choice
in the election.
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2. Fresenius objects to the reliance of the Board agent on the party observers to
conduct the election. The Board agent ceded his authority to conduct the election to the
party observers during the election time period by, in part, requiring the party observers
to determine which colored ballot each employee received after they were identified as
eligible voters. Furthermore, the Board agent required the party observers to assist or
help the voters obtain their ballots indirect contravention of the Board's instructions to the
party observers which stated, in part, "DO NOT give any help to any voter. Only a Board
agent can assist a voter." Form NLRB-722. (emphasis in original). The Board has long
held that it must maintain and protect the integrity and neutrality of its election
procedures and the Board agent failed to do so in this election. See, e.g., Alco Iron &
Metal Co., 269 NLRB 590, 591 (1984); Glacier Packing Co., 210 NLRB 571 (1974).
3. Fresenius objects to the Board agent's decision to prohibit employees from
using any writing instrument except for an erasable pencil in marking their ballots. The
use of an erasable pencil permits the potential tampering with the markings on the
ballots both before and after the election.
4. Fresenius objects to the Board agent's failure to permit the parties to see or
review the marked ballots at any time after he removed them from the ballot box. The
Board agent required the party observers and all other party officials to stand or sit a
substantial distance from him as he reviewed and counted the ballots, such that
Fresenius's representatives were unable to see clearly, if at all, the markings on all of the
ballots. In addition, the Board agent turned the ballots face down and/or covered with
his hand(s) the markings on any ballots that he placed on the table face up. Pursuant to
Section 11340.5 and/or Section 11340.6 of the Case Handling Manual, the Board agent
was required to "call [] out and display [] the preference expressed and place [] them,
face up, in piles according to the preferences expressed." The Board agent, however,
did not "display" or otherwise show Fresenius's representatives the markings on the
ballots. In addition, pursuant to Section 11340.7(a) of the Case Handling Manual, the
parties are entitled to object to the Board agent's interpretation of any marks made on
the ballots. Fresenius, however, was precluded from considering the Board agent's
interpretation of any marks on the ballots because the Board agent did not show the
ballots to any Fresenius representatives.
5. Fresenius objects to the conduct of the election as set forth above to the
extent that the abnormalities and significant deviations from Board-recommended
procedures contained in the Case Handling Manual cast doubt on the fairness and
impartiality of the process. Employees were required to write in erasable pencil, and the
Board agent (who was the only person to actually see and interpret the markings made
on the ballots and count the ballots) admitted to the party observers that he was color-
blind, could not differentiate between yellow and green (the color of the ballots), and that
he could not differentiate letters or numbers placed in a colored box in a vision test due
to his colorblindness. "[T]he 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 setting aside that election." Alco Iron & Metal Co., 269
NLRB 590, 591 (1984).
6. Fresenius objects to the conduct of the election whereby the Board agent
interfered with, coerced and restrained employees in the exercise of their § 7 rights, and
interfered with their ability to exercise an uncoerced and reasoned choice in the election.
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WHEREFORE, Fresenius respectfully requests that the election conducted on
November 3, 2006 be set aside, and a new election be scheduled by the Regional
Director.
ll. FACTS
A. THE PRE-ELECTION CONFERENCE
The election was held on November 3, from 1:00 p.m. to 4:00 p.m. in the back of the
Employer’s warehouse. At 12:30 p.m. the Board agent, Howard Shapiro met with
representatives of the Employer and the Union. Present on behalf of the Employer was
Kevin King (Senior Director of Distribution Operations), Mike Sereno (Distribution Center
Manager), Doug Maloney (East Region Manager for Distribution) and Grant Dopheide (Human
Resources Director). Jerry Ebert, (Union Organizer) was present on behalf of the Union.
Shapiro indicated that the area selected by the Employer to conduct the election was
satisfactory, and he proceeded to set up the ballot booth and the ballot box. Shapiro showed
the parties that the box was empty and taped and sealed the box. He explained that there
would be one ballot box for both units and that the employees in Unit A (drivers) would be given
green ballots and that employees in Unit B (warehouse employees) would be voting on yellow
ballots. At about that time, Bob Bonds, a driver entered the warehouse from the side entrance,
and approached the conference, apparently thinking that the election had started and he could
vote. Kevin King stepped away from the conference, and instructed Bonds that it was too early
to vote, and asked Bands to go to the break room, until the election was ready to begin. King
escorted Bonds out of the warehouse area.
While King was dealing with Bonds, the conference continued. Shapiro after discussing
the different color ballots that would be used, pulled a yellow ballot out of his shirt pocket, and
stated that it was green. One of the representatives corrected Shapiro, and told him that the
ballot was yellow. Shapiro then informed everyone that he was color blind. No one made any
response to Shapiro's disclosure, nor made any objection to Shapiro conducting the election, in
20 view of his color blindness.
At about 12:45 p.m., the two observers, Janet Buxbaum (Employer) and Kevin Farrell
(Petitioner) joined the conference. Shapiro distributed written instructions to the observers, and
discussed these instructions with them. He told them that they were to verify the identity of the
voters and check off names on the Excelsior list.
The instructions to observers contain the following language:
PRINCIPAL FUNCTIONS:
• Monitor the election process
• Help identify voters
• Challenge voters and ballots
• Assist Board agent in the conduct of the election
Shapiro did not mention to the observers that he was color blind, nor did he tell them that
he needed assistance from them in determining the color of the ballots.
Although several representatives of the Employer testified that they were shocked or
surprised at the revelation that Shapiro was color blind, none of them informed the Employer’s
observer of this fact, nor instruct her to make sure that the employees received the correct color
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ballots. Additionally, there was no discussion between the officials of the Employer, after the
disclosure of Shapiro's colorblindness, until after the election was over, and the ballots counted.
B. THE POLLING PERIOD
On two occasions during the voting, employees were told by Shapiro that they could not
use a pen to mark their ballots, but they must use a pencil, provided by the Board agent. During
the first hour of voting, an employee would come to vote, the observers would ask the employee
his name. After the observers would agree as to the identity of the person, Shapiro asked
"yellow or green", and the observers would respond which color ballot the employee should
receive, depending on whether they were in Unit A (Drivers) or Unit B (Warehouse
Employees).2
After being so informed, Shapiro would remove a ballot from his shirt pocket, and hand
the ballot to the voter.3 The voter would then take his ballot to the booth, fill out the ballot, and
then place it into the ballot box, which was situated next to Shapiro.
Buxbaum testified that she wasn't paying close attention for the first hour to the color of
the ballot that Shapiro actually gave to the voters, so she did not notice whether Shapiro read or
looked at the ballot before handing it to the voter. Buxbaum also testified that at times during
this period, she could see some of the ballots being carried by the voter to and from the booth,
as well as at times see the a ballot before or while the voter placed the ballot into the box.
However, Buxbaum also testified that at times she did not see some ballots, because it was
dark, the voters folded the ballot so she could not see it, or she was looking at the Excelsior list
and not paying attention. Thus Buxbaum contends that Shapiro could have given the incorrect
color ballot to at least some voters, and she would not have noticed the error. Buxbaum also
testified that there were "a lot" of people who came to vote at the beginning of the election. She
did not testify as to how many employees voted during the first hour, but did indicate that
several employees, i.e., more than four voted in the initial rush of voters, immediately after the
polls opened.
At about 2:00 p.m. Buxbaum asked Shapiro why the observers had to continue to say
green or yellow ballot. Shapiro responded that he was color blind and that he has been since he
was 35 years old. Buxbaum asked "You're color blind? How could you, like, distinguish
between green and yellow?" Shapiro answered that he could see shades.4 At that point Farrell
and Shapiro had a discussion about color blindness and the lchihara color blind test. 5
After that discussion was completed, Shapiro asked the observers to continue to call out
the colors. At that point, Buxbaum began to more carefully watch the colors of the ballots that
Shapiro gave to the voters. Shortly thereafter, Shapiro handed a yellow ballot to a driver who

2 The ballots themselves stated on the right side of each ballot "(Unit B - Yellow)" and "(Unit
A - Green)".
3 The ballots were in Shapiro's shirt pocket, rolled together, with the green ballots encircling
the yellow ballots.
4 In that connection Union Representative Ebert testified that he was "a little bit taken aback",
when he found out at the pre-election conference that Shapiro was color blind. However, he
became reassured during a conversation with his wife during lunch while the election was going
on. According to Ebert his wife informed him, "There's no problem. Color blind doesn't mean
you can't see colors, it means you just see shades of things".
5 Farrell's parents were doctors.
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was supposed to receive a green ballot. Both Buxbaum and Farrell corrected Shapiro and told
him that he had given a yellow ballot to a driver, instead of a green ballot. Shapiro corrected the
error, gave the voter the appropriate green ballot, which the voter used. Shapiro then stated to
the observers, "This is the reason why I need you to call out the colors. This way, I don't make
a mistake."
After this incident, Buxbaum asserts that she began to watch more carefully what color
ballots were actually given to the voter by Shapiro. She did not notice any other errors. Indeed
except for the one mistake that was corrected, Buxbaum testified that she was unaware of any
other mistakes by Shapiro, and could not testify that any employee voted with an incorrect color
ballot.
C. THE COUNT
After the poll was closed, Shapiro counted the ballots. Present were King, Dopheide,
Sereno, Frank Petliski, (Warehouse Supervisor), Tom Engel (Transportation Supervisor), Ebert,
Buxbaum and Farrell. Shapiro sat at one of two circular tables in the area. Buxbaum and Farrell
sat at the other table approximately four feet away from Shapiro. The Board agent directed
Ebert and the Employer's representatives to stand back from the table, approximately six to
eight feet away from Shapiro.
Shapiro removed all the ballots from the box, and separated the ballots into green and
yellow. Shapiro had no difficulty in determining which ballots were green and which were
yellow, and was able to separate them without any assistance, and without making any errors.
He then first counted the green ballots, by calling out "yes" or "no", and placing the "yes" ballots
face up and the "no" ballots face down. Shapiro did not hold up or display the ballots for anyone
to see. He then repeated the same process for the yellow ballots. Shapiro then counted the
ballots in each pile and announced the count for each unit. As noted, the counts were 9 "YES"
and 7 "NO" in each unit. None of the representatives present could see the markings on the
ballots during the count, and no one asked to see them while Shapiro was separating and or
counting.
After Shapiro announced the results, King requested a recount in the warehouse unit.
Shapiro complied with this request, by placing his hand over the markings on the top ballot in
each pile, and counting the piles by paging through the pile, touching only the upper corner of
each. During the recount, Shapiro did not review the markings on any of the ballots to make
sure that only the correct ballots were in the correct piles.
After the recount was completed, King asked if the Employer could see the ballots.
Shapiro replied that the ballots could be seen at the Regional Office on Monday morning. 6
Buxbaum asked Shapiro what he was going to do with the ballots until Monday. Shapiro
responded that he would be taking them home with him. Buxbaum asked where he lived?
Shapiro replied "New City, Spring Valley area."
Shapiro did not allow the Employer's representatives to view the ballots as requested on
November 3. The Employer did not accept Shapiro's offer to view the ballots at the NLRB office
on Monday morning.

6 The election took place on a Friday.
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The ballots have been introduced into evidence. I have carefully examined them, and
conclude that the count was correct, and that each ballot was clearly marked in the "yes" or "no"
box, with no identifying marks, or any other grounds for voiding any of the ballots. Further, the
total number of ballots cast in each unit, exactly matches the number of eligible voters on the
Excelsior list.
After the count, Buxbaum informed the Employer's representatives what had gone on
during the election, particularly Shapiro making a mistake in handling one ballot, and that the
observers were required to call out the colors. Buxbaum added that she was confused about
the process, since when the Board agent counted the ballots, he never asked for help and was
able to determine the colors. Buxbaum was "taken back by it". She also felt confused by the
fact that Shapiro did not show the ballots to the Employer, so they could see the "Yes's" and
"No's"
My factual findings above are based on a compilation of the credited portions of the
testimony of Buxbaum, King, Dopheide, Sereno, Maloney, Petliski, Engel and Ebert. While
much of the facts detailed are undisputed, there are several significant areas of dispute. More
specifically Ebert testified that at the pre-election conference, when Shapiro disclosed that he
was color blind, he also said that he had no problem distinguishing between yellow and green
ballots. Ebert also contends that Shapiro asked if anyone had a problem with him conducting
the election because of his condition, and that King replied, "As long as the count comes out
right, no problem.” Ebert adds that the other officials of the Employer nodded their head in
approval of King's remark. Ebert also testified that at the count, he was standing behind Farrell
about five feet away from the ballots, and he could see the markings on each ballot clearly as
Shapiro was announcing whether it was "Yes" or "No". Ebert adds that Kevin King was
standing in a counter position to Ebert, the same distance from the ballots. Ebert also denied
that King or anyone else from the Employer asked to see the ballots, and did not recall the
Board agent stating that he would be taking the ballots home with him over the weekend. I do
not credit Ebert as to any of these areas, and credit the mutually corroborative, consistent and
believable testimony of the Employer's witness, as detailed in the above statement of facts. I
did not find Ebert to be a particularly impressive witness. He was often vague, at times flip,
inconsistent with his affidavit, and inconsistent between direct and cross examination.
Most importantly, the Union failed to call Kevin Farrell, the Union's observer, who was
present throughout the entire hearing, and could have corroborated Ebert in these areas of
dispute between Ebert and the Employer's witnesses. 7
Since Farrell was the lead organizer and observer for the Union, there is a presumption
that his testimony would be favorable to the Union. I find it appropriate to draw an adverse
inference from the Union's failure to call Farrell as a witness, and rely on same as additional
support for my failure to credit Ebert as detailed above. Local 705, IBT (K-Mart), 347 NLRB No.
42 ALJD Slip op. at 6 (2006) (Adverse inference drawn when employee who was predisposed
towards the Union", did not testify about relevant incidents); Battle Creek Health System, 341
NLRB 882, 884 (2004) (Adverse Inference drawn against Union, that Union supporter
threatened and intimidated decertification supporters when Union failed to offer witness’s
testimony). Local 420 Dump Drivers, 257 NLRB 1306, 1316 (1981) (Adverse inference drawn

7 I note that Ebert testified, contrary to all of the Employer's witnesses, that when Shapiro
disclosed that he was color blind, King allegedly stated that the Employer had no problem with
Shapiro conducting the election.
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against Union for failure to call witness [Business Agent] to corroborate testimony of Union's
Secretary/Treasurer); see also, Avery Heights, 342 NLRB 1301, 1324 (2004) (vacated and
remanded on other grounds). 448 F.3d 189 (2nd Cir. 2006), (Adverse inference drawn against
Employer for failure to call witness who was present for most of hearing).
In this regard, Petitioner in its brief, made several references to the statement allegedly
given by Farrell, and allegedly "attached as Tab 3 to Appendix of Record Evidence in Support of
Local 445's Objections, part of Board Hearing Exhibit 1"), and relied on this alleged statement.
Petitioner is incorrect, as the document referred to is not included in Board Exhibit 1, and
Farrell's statement is not in the record. Moreover, even if the document had been in the record,
I would not rely on Farrell's statement, inasmuch as he was available to testify, and should have
been called by the Union as witness, and be subject to cross examination, if the Union wished
to have Farrell's version of events be considered.
Ill. ANALYSIS
Although the Employer has filed six separate objections, which were found by the Board
to require a hearing, all the objections overlap and all rely on Athbro Precision Engineering, 166
NLRB 966, (1967), vacated IUE v. NLRB 67 LRRM, 2361 (D.D.C., 1968) acquiesced in, 171
NLRB 21, 1968, enf. 423 F.2d 573 (1st Cir. (1970), and its progeny. 8
Therefore, I shall consider all the objections together. In Athbro, the Board agent in
charge of the election was seen drinking beer with a Union representative in a cafe by an
employee who had already voted, in between polling periods. The Board observed as follows:
The Employer does not claim any violation of the integrity of the ballot box, nor
does it claim that the conduct of the Board agent had any effect upon the four
employees who later voted. Rather, it objects that the behavior of the Board agent gave
an appearance of irregularity to the conduct of the election, thus departing from the
standards of integrity which the Board seeks to maintain.
The Regional Director, while observing that a Board agent in charge of an
election should not fraternize with a representative of one of the parties in the interim
between two balloting periods, nevertheless did not recommend setting aside the
election. Although the Board agent's conduct did not affect the votes of employees, we
do not agree that this is the only test to apply.
The Board in conducting representation elections 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 setting aside that election.
In the circumstances of this case we hereby sustain the Employer's objections.
Accordingly, we shall set aside the election and direct that a second election be held.

8 Sonoma Health, 342 NLRB 933 (2004); Renco Electronics, 330 NLRB 368 (1999); Hudson
Aviation Services, 288 NLRB 870, (1988); Alco Iron Metal, 269 NLRB 590 (1984); Glacier
Packing Co., 210 NLRB 571 (1974); Skyline v. NLRB, 613 F.2d 1328 (5th Cir. 1980).
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The Employer contends that the conduct of the Board agent here, in various respects,
falls within the proscriptions detailed in Athbro, and requires that the election be set aside. My
review of Athbro, as well as subsequent Board and Court precedent interpreting and analyzing
that case and its principles, leads me to conclude that the Employer has not met its burden of
establishing that the election should be set aside.
I note initially that Athbro, as well as every other case cited by the Employer, 9 involve
facts that attack the neutrality of the Board or the Board agent. Thus cases where the Board
has set aside elections based on Board agent neutrality misconduct under an Athbro analysis
include: Renco, supra (Board interpreter asked voter, while explaining the election procedure,
"Do you know where to put your "Yes" vote?"); Hudson Aviation, supra, (Board agent, in the
presence of voters, had a loud argument with Employer's supervisor, which "impermissibly put
into a question the Board's neutrality in the election."); Alco Iron, supra (Board agent instructed
Union's observer to "translate the procedure of voting to employees". Board finds contrary to
hearing officer, that the "atmosphere of impartiality in which the election should have been held
was not present."); Glacier Packing, supra (Board agent in the presence of voters, ripped off
cards pinned to lapels of Employer’s and observers, which stated "vote neither", tore badges
into pieces, and stated to observers, "Shame on you." Board agent also yelled at supervisor for
distributing literature outside the building, and said "get out of here, stop this. You have no
business and no right to be here handing out anything." Employees were present, began
clapping, made "cat calls", and pointed fingers at supervisor. Board finds that "Employees
witnessing the two incidents involved could reasonably have interpreted Board agent's remarks
and actions as indicative that the Board was opposed to the Employer's position in the
election”).
See also several Court cases, reversing Board decisions which had concluded that
Athbro neutrality principles had not been violated. North of Market Senior Services, 163 LRRM
271 (D.C. Cir. 2000) (Board agent delegated to Union officials the task of going through the
plant, and telling employees what time they could vote. Union agents, wearing union insignia,
told employees that they had been sent by the NLRB to tell employees when they could vote,
and openly disagreed with management's view as to whether they had to vote on their lunch
hour. Court finds that Board erred in not granting hearing to Employer, concluding that Board
agent gave impression that the "Board had ceded significant authority to the Union over the
conduct of the election."), NLRB v. State Plating and Finishing, 738 F.2d 753, 742 (6th Cir.
1984), (Court disagrees with Board, and concludes that statement made by Board agent to
employees concerning raises that could or could not be granted by Employer, "destroyed the
Board's neutrality", and tainted the election); Provincial House v. NLRB, 568 F.2d, 8,11 (6th Cir.
1978) (Ten days prior to election, while investigating ULP charges, Board agent was introduced
by Union official to employees at an organizing meeting at a hotel, as an NLRB agent. (Court
finds that when NLRB representative allowed himself to be introduced to the Union
organizational meeting, the appearance of NLRB neutrality was compromised, warranting
setting aside the election.)
Athbro and its principles have been applied in numerous Board and Court cases where
the standards of Board neutrality were found not to have been violated, and the elections were
not overturned. Sonoma Health Care, supra, cited by the Employer, (Board agent answered
questions of union observer why companies do not like unions, by stating "companies don't like
unions because they cannot fire or hire anyone, and they cannot take benefits from the staff."
Later observer said to Board agent that Employer hired a consultant and paid $60,000. Board

9 See preceding footnote.
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agent replied, "Whoa!, $60,000". Board majority concludes that the comments of the Board
agent "while intemperate and inappropriate", "do not reflect such a level of bias or impropriety
that they tend to destroy confidence in Board's election process"). Indeck Energy Services,
316 NLRB 300, 301 (1995) (Board finds fraternization between the Board agent and Petitioner's
observer, insufficient to reasonably cause a witness to question the Board neutrality, thereby
distinguishing Athbro and Hudson); Rheem Mfg. Co., 309 NLRB 459, 462 (1992) (Comments by
Board agent to observers about his possible need to file a petition on his own, and complaints
about heat in the plant, and his conduct in walking through the plant and taking and laughing
with union observer, found by Board, contrary to Hearing Officer, insufficient to impugn Board's
neutrality or give appearance of fraternization); NLRB v. Duriron Co., 978 F. 2d 254, 258 (6th
Cir. 1992) (Court assessed conversations between Board agent and voters wearing union
insignia, when Agent inquired if voters were related to Gwen West, and Board agent telling
voter that he had taken affidavit from Gwen West in another case. Court agrees with Board that
conversations failed to compromise the integrity of the election, and distinguishing Athbro, as to
the level of fraternization). San Francisco Sausage, 291 NLRB, 384 (1988) (Board agent
allowed Petitioner in RD case to summon voters over the Employer's intercom system. Board
finds delegation of a minor task, did not impugn "atmosphere of impartiality”, as contended by
dissent); Rochester Joint Board Amalgamated Union v. NLRB, 896 F. 2d 24 (2ndCir. 1990),
(Premature disclosure of Decision and Direction of Election by Region on phone to Union, while
refusing to inform Employer who also inquired by phone. Court affirms Board's conclusion that
Board's neutrality was not sufficiently impugned by conduct to warrant setting aside election.
Athbro and Hudson distinguished.); S. Lichtenberg & Co., 296 NLRB 1302, (1989) (Comments
made by Board Attorney 5 days before election published in newspaper, commenting on unfair
labor practice complaint issued by Region. Board concludes that statements "cannot be found
to constitute objectionable conduct destructive of Board neutrality under the Athbro standard");
Sioux Products v. NLRB, 703 F. 2d 1010, 1014, 1015 (7th Cir. 1983) (Court finds various acts of
Board agent not to have sufficiently interfered with the impartiality of election. Acts included
Board agent at pre-election conference telling company observers to "shut up", when observer
attempted to help interpreter translate Board agents remarks into Spanish, prohibiting company
observer from any conversation with voters, and helping union observer in making a challenge);
U.S. Ecology v. NLRB, 772 F.2d 1478 (9th Cir. 1985) (Allowing Petitioner's observer to read poll
opening announcement did not compromise the Board's appearance of neutrality); NLRB v.
Osborn Transportation, 589 F.2d 1275, 1279 (1979) (Same Board agent who conducted
election, took affidavits from employees at motel room while investigating Unfair Labor Practice
charges, 6 weeks before election. Court agrees with Board that above conduct did not
compromise the integrity and neutrality of the Board's procedures); NLRB v. Fenway Cambridge
Motor Hotel, 601 F.2d 33, 36-37 (1st Cir. 1979) (Neutrality of Board's procedures not
compromised by Board agent's conduct when handing ballot to voter, of pointing to "Yes" box
and instructing voter to place mark there); Wabash Transformer Co., 509 F.2d 647, 648-649
(8th Cir. 1975), (Board agent in announcing the opening of the polls, stated "the polls are open
and you may now go vote and elect a union representative." Court upholds Board's conclusion
that the above conduct did not breach the neutrality of the election procedures and that the
integrity of the election was not so impaired as to warrant the holding of a new election);
Shorewood Manor Nursing Home, 217 NLRB 1106,1107-1108 (1975) (Board agent informed
observers that he felt that he had gotten his job at the NLRB, because he had been a union
steward at his previous job. Found not to compromise Board's Athbro standards); Wald Sound
Inc., 203 NLRB 366, fn. 1, 368 (1973) (Board agent, after count, stated to new Board agents
who accompanied her at election, that they had gotten "a winner", where union appeared to
have won. Board affirms Hearing Officer's conclusion, (contrary to dissent who would have set
aside election based on Athbro) that Board's neutrality was not compromised by remark, noting
also that there is no way the remark could have affected the election results since the count was
completed); NLRB v. Dobbs House, 435 F.2d 704, 705-706 (5th Cir. 1970), (Board agent in
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response to questions from the Employer's observer, stated the union represented about 20
places and was trying to get more, (that he felt the union would win at Dobbs House and that it
would do the people a lot of good. Court found Athbro distinguishable, and sustained the
Board's view that the election was not tainted by the above conduct).
As can be seen from my description of the above precedent dealing with Athbro issues,
the primary thrust of these cases was an examination of whether the Board's neutrality was
compromised sufficient to destroy confidence in the Board's election process. Here there is no
contention by the Employer that any of the various alleged transgressions of the Board agent
had any affect on the Board's neutrality. Thus neither Shapiro's color blindness and its potential
affect on the election, nor his alleged problems in conducting the count, nor his decision to
require pencils to be used, impacted the neutrality of the Board, since he treated both sides
equally in these areas. Thus the primary rationale for Athbro is not present here.
In this regard, the Employer alleges as a separate objection, that the Board agent ceded
his authority to conduct the election to the observers, by requesting that they assist him in
determining which color ballots to be given to the voters. Alco Iron & Metal, supra. I disagree.
The crucial factor in Alco that warranted a finding of objectionable conduct was the fact that the
Board agent ceded his authority to the union observer, (emphasis supplied) to translate voting
instructions. The Board emphasized the fact that the Employer's observer has complained
about the conduct, and the Board agent continued to have the union observer repeat
instructions in Spanish. The Board concluded that "under these circumstances, we find the
atmosphere of impartiality in which the election should have been held was not present. The
delegation of an important part of the election process to the Petitioner's observer conveyed the
impression that the Petitioner, and not the Board, was responsible for running the election." 269
NLRB at 591-592. Here, the Board agent requested the assistance of both observers in helping
him insure the correct colored ballots, so there can be no finding, as in Alco that the impartiality
of the election was not present.
The Employer also argues that the Board agent's conduct violates the instructions given
to observers which states, "Do Not... give any help to any voter." I again, do not agree. Indeed
the same list of instructions to observers, states as among the principal functions of the
observer as "help identify voters," and “assist Board agent in the conduct of election." In my
view, the observers were in fact "assisting the Board agent in the conduct of the election", by
helping him to insure the voter receives the proper ballot, as well as helping to identify voters. It
is clear that the observers were using the color of the ballot, as a shorthand way of determining
the proper placement of the voter into either Unit A or Unit B. I find nothing even remotely
objectionable for the observers to assist the Board agent in these minor tasks, particularly as
detailed above, both observers participated in these functions. NLRB v. Michigan Rubber
Products, 738 F.2d 111, 114-115 (6th Cir. 1984) (Following morning polling session, Board
agent allowed union representative to carry metal voting booth to her car. Court finds, in
agreement with the Board, that while Board's agent conduct may have been imprudent, it did
not give appearance of fraternization, sufficient to warrant setting aside election); San Francisco
Sausage Co., 291 NLRB 384 (1988) (Board agent allowing Petitioner's observer to use the
intercom system to announce that employees could vote, was the delegation of a minor task,
insufficient to require a new election); U.S. Ecology v. NLRB, 772 F.2d 1428, 1482-1484 (9th Cir
1985) (Board agent allowed Union observers to read the poll opening announcement, over the
objection of Employer. Choice of union observer was made after a coin toss. Board agent also
allowed the union observer to signal the first voter to come into vote. Court concludes in
agreement with Board, that these delegations of minor tasks to union observer did not
compromise the Board's appearance of neutrality).
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Based upon the above analysis and precedent, I recommend that Objection # 2, be
dismissed.
While the remaining objections, as I have detailed above, do not raise any issue of lack
of neutrality, which substantially detracts from the Employer’s reliance on Athbro and its
progeny, 10 this finding does not fully dispose of the Employer's objections.
Thus there is another line of cases, which analyzes Board agent conduct, under a
slightly modified version of the second sentence of Athbro. These cases generally involve
conduct which deal with the sanctity of the ballots and or the ballot box, and the appropriate
standard is set forth in Polymers Inc., 174 NLRB 282 (1969) enfd. 414 F.2d 999 (2nd Cir. 1969),
cert. denied 346 U.S. 1010 (1970). The question to be answered is whether the conduct of the
Board agent raises a reasonable doubt as to the fairness and validity of the election. This
standard appears to me to be a slight modification of the Athbro standard of evaluating whether
the conduct could reasonably be interpreted as impugning the election standards the Board
seeks to maintain. In any event, subsequent precedent makes clear that the Polymers standard
should be applied to situations, as here, where the Board agent's conduct although not
necessarily violative of neutrality principles, could be construed as a sufficiently serious
departure from Board election standards, to warrant setting aside the election.
In this regard, elections have been set aside, based on violations of the Polymers
standards, in a number of cases. Board agent failed to keep a list of challenged voters, placed
all ballots both challenged and unchallenged into an envelope, and sealed the envelope. When
the Employer asked for a list of challenged voters, Regional personnel broke the seal, and
opened the ballots, removed the challenged ballots envelopes, and a prepared of challenged
voters, and returned the challenged ballots to the envelope, which still contained the
unchallenged ballots. Board concludes that the Board agent's conduct in breaking the seal, and
opening the envelope outside presence of the parties, constituted conduct which reasonably
would destroy confidence in the election process. Madera Enterprises, 309 NLRB 774, 775
(1992). In Jakel Inc., 293 NLRB 615, 616 (1989) as a voter was putting her ballot into the box,
the Union observer told the Board agent that it was to be a challenged ballot. Board agent
opened ballot bag, removed a ballot, showed it to voter and asked if it was her ballot. Voter
identified ballot as hers. Board agent tore up ballot and placed pieces into challenged envelope
and marked it "spoiled". Board agent gave a new ballot to the voter, who voted and had the
ballot placed in challenge envelope. Board affirms Director who concluded that the conduct of
Board agent raised a reasonable doubt as to the fairness and validity of the election. Director
concluded that it cannot be determined with reasonable accuracy whose ballot was extracted
from the bag. Paprikas Fono, 273 NLRB 1326, 1328-1329 (1984) involved a Board agent who
failed to place challenged ballots in an envelope sealed with tape. Regional personnel
subsequently opened the envelope to inspect the condition of the challenged ballots, outside the
presence of the parties. Board concludes that conduct denied parties the opportunity to monitor
challenge and assure themselves that challenges were secure. This conduct created a
"reasonable doubt" as to the fairness and validity of the election. Finally elections were set
aside in Kerona Plastics,196 NLRB 1120 (1972), where the polls were closed 20 minutes early,
in the presence of employees waiting to vote, and in Austill Waxed Paper, 169 NLRB 1169,
1110 (1968) where the ballot box was left unattended, for from 2-5 minutes, due to an

10 As I observed infra, all of the cases cited by the Employer which followed or analyzed
Athbro itself, including Athbro itself, involved conduct which compromised the Board's neutrality.
Renco, supra; Alco, supra; Hudson, supra; Sonoma Health Case, supra; Glacier Packing,
supra.
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altercation outside the polling place.
On the other hand there are numerous Board and Court decisions, applying the
Polymers standard, and finding that the conduct did not raise a reasonable doubt as to the
fairness and validity of the election. Enloe Medical Center, 345 NLRB No. 54 ALJD Slip op. at
18, (2005), enfd. 181 LRRM 2697, 2698 (D.C. Cir. 2007) (Board agent, in election involving
multi-color ballots and several units, gave all challenged voters white ballots, even though some
of them should have received green or pink ballots. However, since the name and job of voter
was on the envelope, when challenges were resolved, the ballots were placed in the correct
unit. Thus the ALJ found, supported by the Board and the Court, that the error of Board agent
could have had no effect on the results); St. Vincent's Hospital, 344 NLRB No. 71 Slip op. at 2
(2005) (Two voters were allowed to enter the voting booth at the same time); Cedars-Sinai
Medical Center, 342 NLRB 396, 608-609 (2004) (Blank ballots left unattended, and observers
did not initial seal in ballot box); Robert Orr-Sysco Food Services, 338 NLRB 614, 623 (2002)
(Board agent failed to detail reasons for the challenge, contrary to Case Handling Manual); J. C.
Brock Co., 318 NLRB 403, 404 (1995) (Region's error in using separate language ballots,
requiring Board agent to ask if voter needed Vietnamese ballot); T. K. Harvin & Sons, 316 NLRB
510, 537 (1995) (Two ballots taken from ballot box, one inside the other); Rheem Mfg., supra,
309 NLRB at 459-461) (Board agent allowed three employees to vote while polls were closed
between sessions. Board agent put ballots in shirt pocket, and told observers that he would
deposit ballots in box when polls reopened. When other Board agent returned, he put ballots in
briefcase, and when polls reopened, explained to parties what had occurred. The Employer
challenged ballots, which were never counted. Board, reversing Hearing Officer, finds that
although proper procedures were not followed, facts did not cause reasonable doubt as to
validity of election); Dunham's Athleisure Corp., 315 NLRB 689 (1994) (Observers could not see
the ballot box for substantial periods of time during election); Allied Acoustics, 300 NLRB 1181
(1996) (Board agent miscounted ballots. An hour after tally was served, Employer notified
Region that he believed 24 employees had voted. [Tally showed 23]. Board agent recounted
the ballots in private, and recount disclosed an additional vote for Union, and 24 votes cast. He
prepared a corrected tally of ballots); Newport News Ship Building, 239 NLRB 82, 90 (1978)
(Ballot box not sealed, union representative carried ballot box from one to another polling place,
and company representative was denied permission to inspect ballot boxes); Kirsch Drapery,
299 NLRB 363, 364 (1990) (Board agent opened polls a half hour late, allowed parties to
assemble voting equipment, placed challenged ballot in box, rather than instructing voter to
place it in box, and violated Case Handling guidelines in resolving challenge. Board reverses
Hearing Officer, and finds separately or collectively, their misconduct do not raise a reasonable
doubt as to fairness and validity of election); Trico Products, 238 NLRB 380, 381 (1978) (Board
agent left envelope with blank ballots unattended for 5 minutes while erecting voting booth.
When Board agent retrieved ballots, she noticed a small tear in envelope); Niagara Wires, 237
NLRB 1347, (1978) (Portion of initials of company representative was under the tape rather than
over it); Keystone Metal Moulding, 236 NLRB 697 (1978) (Board agent did not request that
observers inspect the seal, before opening the box, and observers could not see or confirm that
box had not been tampered with. Further Board agent failed to have observers sign certification
of conduct at end of first voting session); Pride Made Products, 233 NLRB 182 (1970) (Voter left
polling area with marked ballot, spoke to some employees who had voted, and returned to
voting area to cast her vote. Board agent challenged her ballot); Benavent & Fourmier, 208
NLRB 636 (1974) (Board agent left voting area for 2-5 minutes, and left ballots on table and box
unsealed); People’s Drug Stores, 202 NLRB 1145 (1973) (In multi store election, ballot boxes
were left in trunk of escort vehicles [driven by employees], and Board agent took the trunk key
for the day); Polymers, supra, (Ballot box was left unguarded in locked car of Board agent
between sessions. Box not sealed properly, since easily removable masking tape was used);
Nabisco Inc. v. NLRB, 738 F.2d 955, 958 (Union observers failed to give identification badges,
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as required in Case handling Manual); Skyline Corp. v. NLRB, 613 F.2d 1328, 1332-1333 (5th
Cir. 1980) (Envelopes containing ballots were not sealed with tape, no label with name of
person who sealed envelope, and no memo in file stating where challenged ballots were stored,
all in violation of Case Handling Manual); Bell Foundary Co. v. NLRB, 827 F. 2d 1340,1346-
1347 (9th Cir. 1987) (Board agent left ballot box unattended for five minutes before start of
afternoon session); NLRB v. Capitan Drilling Co., 408 F.2d 676, 677 (5th Cir. 1968) (One seam
on ballot box was not sealed with tape).
It is therefore appropriate and necessary to evaluate the conduct of the Board agent
here, under the analysis of Polymers, and determine if it creates a "reasonable doubt as to the
fairness and the validity of the election." 11 Polymers, supra, 174 NLRB at 282; Enloe Medical
Center, supra, 345 NLRB #54 at ALJD Slip op. p. 18; Sawyer Lumber Co., 326 NLRB 1331,
1332 (1998); Keystone Metal, supra, 236 NLRB at 697; Rheem Mfg, supra, 309 NLRB at 460.
In Objection No. 1, the Employer asserts that the Board agent's color blindness rendered
him unable to differentiate between the colors of the ballots for the two separate units, and the
failure to use a separate ballot box for each unit, caused confusion and potential for miscast
ballots.
Taking the Employer's latter contention first, I find nothing inappropriate or confusing in
using a single ballot box for both units. Indeed this is the normal procedure in Board elections,
and nothing in the Case Handling Manual indicates or requires separate boxes. In my view, the
use of different color ballots and voting lists ensured that each ballot was recorded, and counted
accurately. Further, the Employer introduced no evidence of confusion amongst eligible voters
as a result of using one, rather than two boxes. I therefore conclude that the use of one ballot
box did not create a reasonable doubt as to the fairness and validity of the election. Polymers,
supra.
The Employer's contentions with respect to the Board agent's colorblindness is more
troublesome. The Employer argues that his admitted colorblindness caused him to confuse the
color of the ballots twice, once at the pre-election conference, and once during the election.
While conceding that neither of these errors caused a wrong ballot to be voted, 12 the Employer
asserts that since the Employer's observer could not be certain that the correct color ballots
were distributed to all voters, since she was not paying close attention for the first hour of the
election, that "no one will ever know how many other wrong colored ballots were distributed by
the Board agent, or how many voters cast ballots with the wrong colored ballots. It is for this
reason that there cannot be confidence in the results of this election."
However, it is well settled that the Board will not set aside elections based upon
speculation that its election standards have been impugned or violated. "It requires more than
mere speculation to overturn an election." J. C. Brock, supra., 318 NLRB at 404, Sawyer
Lumber, supra, at 1332 ("Speculation about the possibility of irregularity ... does not raise a
reasonable doubt as to the fairness and validity of the election); Newport News, supra., 239

11 I note again my conclusion detailed above, that this standard represents a clarification,
and perhaps a slight modification of the language in Athbro that the conduct can be
objectionable, if it "could reasonably be interpreted as impairing the election standards the
Board seeks to maintain."
12 The first mistake occurred in the pre-election conference, before any ballots were
distributed, and the second error was caught by the observers, and the mistake rectified by
giving the voter the appropriate color ballot.
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NLRB at 86 ("The speculation of the Employer concerning the accuracy or legitimacy of the
ballots is no substitute for specific evidence relating to actual conduct or events which raises
material issues that the Board's election standard have been impugned). Pride Motor Products,
233 NLRB 182 (1977) (The Board "does not set aside an election based on mere speculation
that election standards have been impugned”); Bell Foundry v. NLRB, supra, 827 F.2d at 1346
("The mere possibility of irregularity of representation election does not preclude certification"),
NLRB v. Capitan Drilling, 408 F.2d at 677 (Uncorroborated speculation that ballot box could
have been tampered with, insufficient to necessitate an evidentiary hearing or the setting aside
of the election). Trico Produces, supra, 238 NLRB at 381 ("It is not every conceivable possibility
of irregularity which requires setting an election aside but only reasonable possibilities").
Further, the Board in Polymers, supra, supported by the Court, enlarged upon the definition of
reasonable . The Board held:
We do not think, however that the word “possibility” could ever be construed in this
context to have the connotation of 'conceivable'. The concept of reasonableness of the
possibility must be imported into this text in order for it to have meaning. 174 NLRB at
282 fn. 6.
The Circuit Court specifically affirmed the Board's analysis in this regard. "A per se rule
of possibility 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." 414 F.2d at 1004.
Here the Employer's contentions with respect to the Board agent's conduct, comes down
to no more than "speculation" that it is possible that the Board agent my have given wrong color
ballots to one or more voter, during the first hour of voting, when Buxbaum asserts that she was
not paying close attention, and could not be certain that all voters received a correct ballot.
I do not find this speculative and uncorroborated testimony to be sufficient to warrant the
conclusion that reasonable doubt as to the fairness or validity of the election has been
demonstrated.
The Employer relies on Buxbaum's testimony, as well as the fact that Shapiro made two
mistakes with respect to the color of the ballots. However, other evidence in the record tends to
show that notwithstanding the Board agent's color blindness, he was able to determine the
appropriate ballot. The ballots in addition to being different colors, specifically stated "Unit A" or
"Unit B" on each ballot. There is no evidence in the record that the Board agent had any
difficulty in reading. Buxbaum in her testimony conceded that she did not know if Shapiro read
the ballots before he handed them to the voter during the first hour, because she was not paying
close attention. Therefore, he could have read the ballots and determined the appropriate ballot
to be distributed. I also found Buxbaum's testimony vague and unconvincing concerning the
first hour of voting. While she admits that at times during this period of time, she did see the
voter with the ballot and or place it into the box, she insists that she could not be sure that she
saw all of the voters' ballots, since she was often focused on checking off names on the
Excelsior list. I find this testimony dubious, since it does not take very long to check off a name
on the list, leaving her ample time to see what color ballot the voter had received, before they
placed it in the ballot box. Therefore I find it likely that Buxbaum was able to see most if not all
of the ballots, before they were deposited in the box. I further find it highly likely, that even if
Buxbaum did not see the ballots of some voters, that the Union's observer would have seen the
error and corrected it, as was done, when the Board agent made a mistake with one ballot.
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Furthermore, I note the undisputed evidence that Shapiro was able to separate all the
ballots, into green and yellow piles, without any assistance or difficulty, while conducting the
count, thereby demonstrating that despite his disability, that he was able to determine the
difference between the ballots for Unit A and Unit B.
Accordingly, based on the foregoing, I find the possibility that the Board agent gave a
wrong colored ballot to any other voter to be extremely remote, and that the Employer has fallen
short of its burden of establishing reasonable doubt as to the fairness and the validity of the
election. Polymers, supra.
As further support for this conclusion, I also note that the number of ballots cast, (sixteen
in each unit) equals the number of eligible voters in each unit, which is at least an indication that
no errors were made in the distribution of ballots. T. K. Harvin, 316 NLRB 510, 537 (1995);
Queen Kapiolani Hotel, 316 NLRB 655 (1994). 13
Finally, I also rely on the fact that while the Employer became aware of the Board
agent's colorblindness during the pre-election conference, it made no objection to Shapiro
conducting the election. While I do not find that the employer waived any rights to object to the
Board's agent's conducting the election, I note that by failing to object, the Board agent was
given no opportunity to rectify the alleged deficiency of the election. Polymers v. NLRB, supra,
414 F.2d at 1002; Avante At Boca Raton, 323 NLRB 555, 558 (1997); Sioux Products v. NLRB,
supra, 703 F. 2d at 1015; Wabash v. NLRB, supra, 504 F. 2d at 647. While the Board agent
was by himself at the time, it is conceivable, had the employer objected to Shapiro conducting
the election, that he might have been able to call the Region, and arrange for someone else to
be assigned to at least assist in the election. I also note that although several of the Employer's
representatives testified that they had some concerns about Shapiro's ability to conduct the
election, due to his colorblindness, they nonetheless failed to instruct the Employer's observer
to make sure and look out for the possibility of wrong color ballots being distributed to voters by
the Board agent. Indeed, none of the Employer's representatives even notified its observer that
the Board agent was colorblind, even though he had disclosed this information during the pre-
election conference.
Accordingly, based on the foregoing analysis and authorities, I conclude that the
colorblindness of the Board agent did not raise a reasonable doubt as to the fairness and
validity of the election. Polymers, supra; Enloe Medical Center, supra; (Board finds no
reasonable doubt as to fairness and validity of election, even where Board agent had admittedly
given wrong color ballots to challenged voters. The Court affirmed this finding, concluding that
the Employer failed to show "that the Board agent's alleged misconduct would create a
reasonable possibility of an incorrect outcome in the election, and the allegations were not of
the sort that would create presumption of such taint". 181 LRRM at 2698).
I shall therefore recommend that Objection No. 1 be dismissed.

13 I recognize in this regard, that it is mathematically possible for the Board agent to have
distributed two incorrect ballots, one in each unit, and there would still be a correct number of
total ballots in each unit. However, as explained above, I find it highly unlikely and in fact
remote, that he gave out any wrong color ballots, and the fact that it would be necessary for him
to have distributed precisely, two or four ballots incorrectly, and in each unit, is a further remote
possibility.
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Objection No. 3 alleges that the Board agent required voters to use an erasable pencil,
and on several occasions refused to allow voters to use a pen, and directed them to use a
pencil, provided by the Board agent. The Employer argues that the "use of an erasable pencil
permits the possible tampering with the markings on the ballots before and after the election,
and the requirement that all employees only use such eraseable pencil opens a question in the
fairness of the election process". I note initially that the record does not establish whether or not
the Board agent required the voters to use an "eraseable" pencil as the Employer’s observer
testified only that the Board agent insisted that employees use a pencil, without specifying
whether or not it had an eraser on it. However, even assuming that the finding can be made the
pencils contained erasers, the evidence falls far short of establishing that the Board agent's
conduct in requiring the use of such pencils, created a reasonable doubt as to the fairness and
validity of the election. While the Employer argues, as related above, that the use eraseable
pencils "permits the possible tampering with the ballots", this contention again represents
speculation, which as I have detailed above, is insufficient to set aside an election. Sawyer
Lumber, supra; J. C. Brock, supra; Bell Foundary, supra. No evidence was presented that any
voters were disenfranchised by the use of pencils, nor any evidence that any ballots were
erased, tampered with or changed. Although two voters attempted to vote by using a pen, and
the Board agent required that they use a pencil, the voters in fact voted with a pencil and did not
object to this requirement. In this circumstance, this objection is clearly non-meritorious and
must be dismissed. I so recommend. Elizabeth Town Gas Co. v. NLRB, 212 F.3d 257, 263 (4th
Cir. 2000) (Board agent requiring that voters use a pencil, not objectionable, even where one
employee had initially objected to using a pencil because voter felt that someone could change
her vote).
Objection No. 4 alleges that the Board agent required the observers and other officials of
the Employer to stand back or sit a substantial distance from him, as he reviewed and counted
the ballots. It cites Section’s 11340.5 and 6 of the Case Handling Manual, which requires that
the Board agent “display the ballots and place them face up in piles according to the
preferences expressed.” The Employer argues that the Board agent failed to comply with these
requirements, since he did not “display” the ballots when he was counting, and that he did not
place all of the ballots face up. (He placed the “yes” ballots face up and the “no” ballots face
down.)
As a result of the Board agent’s failure to comply with the Manual, the Employer asserts
that its representatives could not see the markings on the ballots, and were deprived of the
opportunity to make challenges to the Board agent’s interpretation of the markings on the
ballots. The Employer also asserts that this error was compounded by the Board agent’s failure
to accede to the Employer’s request to examine the ballots, after they had been counted.
However, it is well established by both Board and Court precedent, that the provisions of
the Case Handling Manual are not binding procedure rules. These provisions are merely
intended to provide optional guidance in the handling of Representation cases. Robert Orr-
Sysco Food Services, supra, 338 NLRB at 623. (Board agent failed to detail reasons for
challenge) Topside Construction, 329 NLRB 886, 900 (1999) (Voters permitted to vote prior to
opening of polls, contrary to Manual); Sawyer Lumber, supra, 326 NLRB at 1333 (Board agent
failed to tape ballot box closed, and dismantled voting booth before agreed upon closing time);
Avante at Boca Raton, supra, 323 NLRB at 557-558 (Violation of Case Handling Manual
requirement that observers should remain at least 3 feet away from ballot box); Queen Kapiolani
Hotel, supra, 316 NLRB at 655 (failure to securely seal ballot box); Kelly & Hueber, 308 NLRB
578, 579 (1992) (Allowing former supervisor employee of Employer to act as observer for
Petitioner); Correctional Health Solutions, 303 NLRB 835 (1991) (Allowing Petitioner to use
former employee as observer in violation of Manual); Kirsch Drapery, supra, 299 NLRB at 364
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(Board agent deposited challenged ballot in box, rather than directing voter to do so, and
disposed of challenged ballot after the count, and failed to either secure withdrawal of challenge
or memorialize the disposition of the challenge); Schwartz Bros., 194 NLRB 158 (1971) (Board
agent made challenges on behalf of Union, who did not have observer present); Polymers,
supra, 174 NLRB at 282 (Failure to seal ballot box properly); L.C. Cassidy & Sons v. NLRB, 745
F.2d 2, 1059, 1063 (7th Cir. 1984), (Poll closed early and observers did not remove badge while
taking a break); Elizabethtown Gas v. NLRB, supra, 212 F.3d at 267-268, (Board agent did not
seal ballot box when taking breaks); Nabisco v. NLRB, supra, 738 F.2d at 958 (Union
observers failed to wear identification badges, as required in Manual); Skyline v. NLRB, supra,
613 F.2d. 1322 (Envelopes containing ballots were not sealed with tape, no label with name of
person who sealed envelope, and no memo in file, stating where challenged ballots were
stored, all in violation of manual); NLRB v. Fenway Cambridge, supra, 602 F.2d at 38 (Board
agent stood as she explained mechanics of voting, contrary to Board Manual and request of
Employer’s observer).
This as can be seen from the above precedent, the fact that the Board agent violated the
Manual’s provisions is not determinative. Rather, the issue is whether these violations, create a
reasonable doubt as to the validity and fairness of the election.
Here, I agree with the Employer that the Board agent did in fact violate the Manual’s
provisions by failing to display the ballots and not placing them all face up. I further agree that
he compounded these errors, by refusing to permit the Employer to inspect the ballots, although
the Employer had so requested. However, while I do not condone the Board agent’s conduct
here, I conclude that it did not raise a reasonable doubt as to the fairness and validity of the
election, and thus was not sufficient to warrant setting aside the election. Rheem Mfg., supra, at
962; Polymers, supra.
Initially, I note that although the Employer’s witness could not see the marking on the
ballots while the Board agent was counting, due in part as to the Board agent’s instructions as
to where to stand, they made no objection to these instructions, nor did they inform the Board
agent that they could not see the markings. Sioux Products, supra, 703 F.2d at 1015 (Although
Board agent ordered both Union and Employer representatives “back from the table” when
counting ballots, Employer representatives did not complain at the time that they could not see
the ballots); T. K. Harvin, supra, 316 NLRB at 537 (Employer’s observer did not object to the
location of the ballot box); Wabash Transformer, supra, 509 F.2d at 647 (Employer
representative made no objection to announcement made by Board agent over loud speaker,
which allegedly compromised Board neutrality).
The Employer did in fact request to see the ballots, after the count was completed, which
request was denied by the Board agent. However, the Board agent did inform the Employer
that the ballots would be available for viewing at the Board’s office on Monday morning, which
was the next working day. The Employer chose not to take advantage of this opportunity to
view the ballots. Thus any prejudice to the Employer by the failure of the Board agent to allow
inspection of the ballots on the day of the election, was cured by giving the Employer the
chance to do so, on the next working day. Thus had the Employer taken advantage of this offer,
it would have been able to see all the ballots, and to determine for itself whether there were any
questionable markings on any of them.
Most importantly of all, these ballots have been introduced into the record herein. I have
examined them closely, and I conclude that none of them contain any identifying marks or any
other grounds for voiding any of the ballots. Indeed the Employer has not so claimed. Further
the total number of ballots case exactly matches the number of eligible voters in each unit.
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T. K. Harvin, supra, at 537; Queens Kapiolani Hotel, supra, at 655. Dunham’s Athleisure supra,
315 NLRB at 689.
In these circumstances, I conclude not only that this conduct of the Board agent does
not raise a reasonable doubt as to the validity and fairness of the election, but that it could not
have affected the results of the election. Enloe Medical Center, supra, 345 NLRB, ALJD Slip at
18, fn. 18 affirmed by Circuit Court’s conclusion that Employer “failed to provide evidence that
would create a reasonable possibility of an incorrect outcome in the election, and the allegations
were not of the sort that would create a presumption of such taint.” 181 LRMM at 2698, see
also, Allied Acoustics, supra, 300 NLRB at 1181 (Error in counting by Board agent, plus recount
made in private, insufficient to set aside election, since no evidence of tampering, loss of ballots
or any factual issue concerning the accuracy or integrity of Board agent’s recount); Dunham’s
Athleisure, supra, 315 at 689. (Although observer unable to see ballot box at all times during
election, no evidence of tampering, loss of ballots or that box was “stuffed” when observers
could not see box). As Board stated therein, quoting Polymers v. NLRB, 414 F.2d 49 “A per se
rule of [Setting an election aside if there is a possibility] [of irregularity] would impose an
overwhelming burden on a representation case. If speculation on conceivable irregularities
were unfettered, few elections results would be certified, since ideal standards cannot always be
attained.” See also, Wald Sound, supra (Alleged improper conduct of Board agent could not
have affected election results, since they occurred after ballots were cast).
Accordingly, based on the foregoing analysis and authorities, I recommend that
Objection 4 be dismissed.
In Objection number 5, the Employer in effect repeats all of the previous allegations, and
contends that “the abnormalities and significant deviations from Board recommended
procedures contained in the Case Handling Manual cast doubt on the fairness and impartiality
of the process.” It argues further that “individually, or in the aggregate, the abnormalities and
significant deviations in the conduct of the election could reasonably lead employees to question
the secrecy of the election, the impartially of the ballot process and or the accuracy of the
election results reported by the Board agent.” Renco, supra; Alco, supra.
However, I have already considered the Employer’s assertions in connection with my
discussions above concerning its other objections. I do not find that considering the Employer’s
objection in the aggregate, results in any change in my conclusion, that none of the specific
allegations of misconduct of the Board agent, singly or collectively, created a reasonable doubt
as to the fairness and validity of the election. Polymer, supra; Enloe Medical Center, supra;
Kirsch Drapery, supra, at 364. (Deviations from guidelines in Manual, “considered separately or
collectively, do not raise a reasonable doubt as to the fairness and validity of the election”) 14
The Employer’s reliance on Renco, supra; Alco, supra and Athbro, supra, is misplaced.
As I have detailed above, the basis and rationale for these cases, as well as other cases cited
by the Employer, all involve conduct by Board representatives that was found to compromise
the Board’s neutrality in the election process, and which suggested that “the Board favored the
Petitioner.” Renco, supra at 368. Here, as I have concluded, there is not a scintilla of evidence
of any conduct of the Board agent that can be said to have compromised the Board’s neutrality

14 The cumulative impact argument may not be used to turn a number of insubstantial
objections to an election into a serious challenge. NLRB v. Browning and Ferris Industries, 803
F.2d 345, 349 (7th Cir. 1986); Amalgamated Clothing Workers v. NLRB, 736 F.2d 1559, 1569
(D.C. Cir 1984).
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or suggested that the Board favored the Petitioner. Thus the Employer’s precedent is
inapposite, and instead I have evaluated the Board agent’s conduct under the Polymers
standard, which as I also have observed is similar to the second sentence of Athbro. However,
the cases following and interpreting Polymers, do in assessing whether a reasonable doubt
exists as to the validity and fairness of the election consider the possible or probable impact of
the conduct on the election results. Indeed, I note that even in Renco, supra, which analyzed
the conduct of the Board, under Athbro standards, concluded that since the improper comments
that were made by the Board representative was heard by voters waiting in line, “there was
sufficient evidence of dissemination, given the closeness of the election, to establish that the
conduct may have affected the outcome of the election.” Id. at 368.
Here, as I have discussed above, I find that none of the Board agent’s conduct,
considered singly or collectively, raises a reasonable doubt as to the fairness of the election. I
found that the possibility that the Board agent’s color blindness affected the election results to
be remote. Polymers, supra; and that the other conduct, i.e., use of one ballot box, pencils, and
the Board agent’s conduct in conducting the count, had no affect on the election results. Enloe
Medical Center, supra.
The Employer emphasizes in this regard, the closeness of the election, noting that a
change of one vote in either unit, could have affected the results. Renco, supra. See also,
Jakel, supra, 293 NLRB at 616. However, while “elections decided by narrow margins are
closely scrutinized, there is, however, simply no presumption against the validity of a closely
contested election. c.f. NLRB v. Browning Ferris-Indus. of Louisville, 803 F.2d 345, 349 (7th Cir.
1986) (While… the closeness of the vote may be (a) relevant consideration [] in determining
whether free choice was interfered with… (this) fact is (not) sufficient to raise a presumption that
the complained of conduct had an impact on the election results). Elizabethtown Gas v. NLRB,
supra, 212 F.3d at 268-269. Therefore the closeness of the election is insufficient to meet the
Employer’s burden of establishing that the conduct of the Board agent raised a reasonable
doubt as to the validity and fairness of the election, or otherwise impugned the Board’s election
process.
I also note particularly the Board’s recent decision in Ensign Sonoma, reaffirming Athbro
standards, but finding no violation of same in that particular case. The Employer relies heavily
on the portion of the opinion that reaffirms Athbro , as well as the dissenting opinion of
Chairman Battista and his reference to the Board’s election process as the “crown jewel” of the
Board’s endeavors. However, the Employer conveniently ignores other portions of the majority,
as well as the concurring opinion therein, which clarify, if not modify the Athbro analysis. Thus,
in assessing whether the conduct of the Board agent therein, destroyed confidence in Board’s
election procedures or truly impugned the election standards the Board seeks to maintain, the
Board considered the potential impact on the election. It relied on facts that the statements
were heard by only two employees, and the election was won by a large margin, and concluded
that its election standards were not impugned and do not taint the perception of Board
neutrality. The Board also observed, “In so concluding, we are mindful of the fact that the
impact of Board agent misconduct on an election’s outcome is not determinative under Athbro.
Nevertheless, preservation of the free choice of employees is a relevant and compelling
consideration, and we will not nullify that choice under the circumstances presented in this
case.” 342 NLRB at 934. Further as pointed out correctly in the concurring opinion (342 NLRB
at 435) “while actual impact on the election is not the only consideration, it is not relegated to
secondary status. To the contrary, in Athbro itself the Board reveals the order of analytical
procedure. ‘Although the Board agent’s conduct did not affect the votes of employees, we do
not agree that this is the only test to apply.’ 166 NLRB at 966”.
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Therefore, I reject the Employer’s contention that the Petitioner’s argument that no
evidence was shown that any ballots were inaccurate is without merit. Sonoma Health makes
clear, that even in using an Athbro analysis, impact on the election is a relevant consideration.
Here, as I have described in detail below, the Employer has failed to demonstrate the
reasonable possibility that any or all of the conduct of the Board agent had any impact on the
election results. In such circumstances, its objections must be dismissed. Polymers, supra,
Enloe Medical Center, supra; Allied Acoustics, supra; Bell Foundary v. NLRB, supra; People’s
Drug Stores, supra; Kirsch Drapery, supra; Trico Products, supra. 15
As the Board’s concurring opinion in Sonoma Health, aptly observed, “to set the election
aside under these circumstances would serve only to frustrate the free choice of the employees,
whose votes would be rendered a nullity even though the employees had nothing to do with the
Board agent’s misconduct.” I would also add that the Petitioner and its representatives engaged
in no misconduct here, unlike Athbro, supra, where the union did participate in the misconduct
of the Board agent, by drinking beer with the Board agent at a café after the first polling closed,
but before the second polling had begun.
Accordingly, I also recommend that Objection #5 be dismissed.
The Employer’s final objection asserts that the Board agent interfered with, coerced and
restrained employees in the exercise of their Section 7 rights and interfered with their ability to
exercise an uncoerced and reasoned choice in the election. The Employer relied on no
additional facts with respect to this objection, relying on the various acts of alleged misconduct
by the Board agent, set forth in objections 1 though 5, which I have already discussed and
dismissed.
I initially note that whether or not the Board agent’s conduct warrants the election being
set aside, it does not constitute coercion or restraint of Section 7 rights of employees, since that
section of the Act covers only conduct by Employers or Unions, but not Board agents.

15 I have considered the cases that I cited above, such as Madera, supra; Jakel, supra;
Paprikas Fono, supra; Kerona Plastics, supra; and Austill Waxed Paper, supra, where the Board
set aside elections based on Board agent misconduct. All of these cases involve situations
where the misconduct of the Board agent was far more serious and egregious than that of the
Board agent here, and where the Board concluded that conduct created reasonable doubt
concerning the fairness and validity of election, principally in view of the significant uncertainty
created as to the sanctity of some of the ballots by the conduct of the Board agent. Moreover,
as I have detailed above, far more serious and egregious misconduct by Board agents has been
found by the Board and or the Courts not to have created a reasonable doubt as to the validity
and fairness of elections. See for example, Enloe Medical Center, supra (Board agent gave
wrong colored ballots to three voters); St. Vincent’s Hospital, supra (Two voters allowed into
voting booth at the same time); Cedars-Sinai, supra (Blank ballots left unattended, and
observers did not initial seal in ballot box); Rheem Mfg., supra (Allowing voters to vote while
polls not opened); Allied Acoustics, supra (Board agent miscounted ballots, and made recount
in private); Kirsch Drapery, supra (Board agent opened polls late, placed challenged ballot in
box, rather than instructing voter to do so, and resolved challenge after count, contrary to
Manual); Trico Products, supra (Board agent left blank ballots unattended and tear noticed in
envelope containing ballots, when Board agent retrieved ballots); Bell Foundry v. NLRB, supra
(Board agent left ballot box unattended for five minutes before start of afternoon session).
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To the extent that the Employer argues that the Board agent’s conduct placed the
fairness of the election in question, I have rejected that contention, in the above analysis where I
recommended dismissal of Objections 1-5. Therefore, I recommend that Objection No. 6 be
dismissed as well.
CONCLUSION
I recommend that all of the Employer’s objections be dismissed and that an appropriate
certification issue 16
Dated, Washington, D.C., May 25, 2007.
______________________
STEVEN FISH
Administrative Law Judge

16 Pursuant to the provisions of Section 102.69 of the Board’s Rules and Regulations, Series
8, as amended, within 14 days from the date of issuance of this Recommended Decision, either
party may file with the Board in Washington, D.C. an original and eight copies of the exceptions
thereto. Immediately upon the filing of such exceptions, the party filing same shall serve a copy
thereof upon the other parties and shall file a copy with the regional Director. If no exceptions
are filed thereto, the Board may adopt this Recommended Decision.