Osram Sylvania, Inc.

National Labor Relations Board - Board Decisions

May 14, 1998

325 N.L.R.B. 758 (N.L.R.B. 1998)

758
325 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
2 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation to sustain the challenge to the ballot of
Brian F. Robinson. Further, since the Petitioner has withdrawn its
challenge to two ballots, Bd. Exhs. 4 and 6, and the parties stipu-
lated at the hearing that these two ballots should be counted as
‘‘No’’ votes, we adopt the hearing officer’s recommendation that
Bd. Exhs. 4 and 6 should be counted as ‘‘No’’ votes in the final
tally of ballots.
Also, in the absence of exceptions, we adopt pro forma the hearing
officer’s recommendation to overrule Employer’s Objection 4.
In adopting the hearing officer’s recommendation to overrule Em-
ployer’s Objection 1, which alleged that the Board agents conducting
the election interfered with the election by allowing an employee,
Marjorie Erich, whose name was not on the eligibility list, to cast
an unchallenged ballot, we disavow the hearing officer’s character-
ization of the Employer’s position in this regard as ‘‘disingenuous’’
merely because the Employer contended at the hearing that Erich
was, in fact, eligible to vote in the election. Rather, we agree with
the Employer that the thrust of its Objection 1 did not concern
Erich’s eligibility to vote in the election, but raised the issue of
whether the appearance of loss of control of the election procedure
was created by the Board agents permitting Erich to cast an unchal-
lenged ballot. We agree, however, with the hearing officer that Em-
ployer’s Objection 1 lacks merit because the Erich incident was an
isolated incident in an orderly and otherwise well-run election which
by itself was not sufficient to create doubt in the minds of employ-
ees regarding the impartiality of the Board agents, the validity of the
election, or the integrity of the election process.
In adopting the hearing officer’s recommendation to overrule Em-
ployer’s Objection 2, we do not agree with the hearing officer that
the Employer’s reliance on certain court decisions reversing prior
Board decisions can be ‘‘easily disregarded.’’ Nevertheless, we find
that these decisions do not warrant a different result
In adopting the hearing officer’s recommendation to overrule Em-
ployer’s Objection 3, we do not rely on the hearing officer’s state-
ments regarding the subjective reactions of certain employees to al-
leged threats. See, e.g., Picoma Industries, 296 NLRB 498, 499
(1989).
In adopting the hearing officer’s recommendations to overrule Em-
ployer’s Objections 2 and 3, Member Brame finds it unnecessary to
pass on whether employees Joseph McClain and Christopher Hayes
were union agents because he finds that even if their alleged conduct
were attributable to the Petitioner, it did not reasonably tend to inter-
fere with the employees’ free and uncoerced choice in the election.
See United States Aviex Co., 279 NLRB 826, 826 fn. 3 and 846–
847 (1986).
Osram Sylvania, Inc. and International Union of
Electronic, Electrical, Salaried, Machine &
Furniture Workers, AFL–CIO. Case 6–RC–
11305
May 14, 1998
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS FOX AND
BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to and deter-
minative challenges in an election held June 27, 1996,
and the hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to
a Stipulated Election Agreement. The tally of ballots
shows 251 votes for and 227 against the Petitioner,
with 35 challenged ballots, a sufficient number to af-
fect the results.
The Board has reviewed the record in light of the
exceptions and briefs and has adopted the hearing offi-
cer’s findings1 and recommendations2 only to the ex-
tent consistent with this Decision, and finds that a cer-
tification of representative should be issued.
1. Contrary to the hearing officer, we find that
Board’s Exhibit 2, a ballot marked with a smudged di-
agonal line in the ‘‘Yes’’ box and 7 ‘‘X’’s in the
‘‘No’’ area of the ballot, including a full ‘‘X’’ in the
‘‘No’’ box, clearly expresses the voter’s intent to vote
‘‘No’’ in the election. Accordingly, we shall count
Board’s Exhibit 2 as a ‘‘No’’ vote in the revised tally
of ballots set out below.
Relying on the Board’s decision in Bishop
Mugavero Center for Geriatric Care, 322 NLRB 209
(1996), the hearing officer found that the Petitioner’s
challenge to Board’s Exhibit 2 should be sustained be-
cause the ballot did not indicate a clear expression of
voter intent. In reaching this conclusion, the hearing
officer refused ‘‘to speculate’’ as to whether the diago-
nal line in the ‘‘Yes’’ box was an inadvertent mark
and the smudge an attempted erasure. As to the full
‘‘X’’ in the ‘‘No’’ box and the six ‘‘X’’s accompany-
ing it, the hearing officer reasoned that ‘‘the interpreta-
tion to be assigned to a double-marked ballot is not a
best two out of three, or even six out of seven, count-
ing experience.’’
As explained by the hearing officer, the issue here
is whether Board’s Exhibit 2 evidences a clear expres-
sion of voter intent. The Board has addressed this issue
in several recent cases. Thus, in Bishop Mugavero
Center for Geriatric Care, supra, a Board majority af-
firmed the Regional Director’s recommendation that a
ballot marked with an ‘‘X’’ in the ‘‘No’’ box and a
diagonal line in the ‘‘Yes’’ box should be considered
void. The majority reasoned that the Regional Direc-
tor’s recommendation was ‘‘consistent with well-estab-
lished Board precedent holding that where a voter
marks both boxes on a ballot and the voter’s intent
cannot be ascertained from other markings on the bal-
lot, the ballot is void.’’ Id., slip op. at 1.
In Brooks Brothers, 316 NLRB 176 (1995), and
Mediplex of Connecticut, 319 NLRB 281 (1995), how-
ever, the Board reached a contrary result and found
that voter intent was clearly expressed where, although
the double-marked ballot at issue in each case con-
tained an ‘‘X’’ in both the ‘‘Yes’’ and ‘‘No’’ boxes,
other markings clearly indicated that the voter intended
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759OSRAM SYLVANIA, INC.
3 Mediplex, supra at 300. The judge in Mediplex went on to find
that the marking in the ‘‘Yes’’ box was a smudged attempted erasure
which was probably caused by the worn eraser head on the voting
pencil which the parties had stipulated into evidence. Id. at 300 and
298. In the present case, we find that the hearing officer gave undue
weight to the fact that the voting pencil used to mark Bd. Exh. 2
was not in evidence. In an election involving over 500 voters, obvi-
ously more than one voting pencil would be used in the election.
Consequently, the mere fact that the voting booth pencil used to
mark Bd. Exh. 2 was not recovered and submitted into evidence
should not prevent an analysis of the smudged marking to determine
whether it was an attempted erasure. Such an analysis is required,
in our view, under the Board’s policy ‘‘to give effect to voter intent
whenever possible.’’ Horton Automatics, 286 NLRB 1413 (1987).
4 In overruling the hearing officer’s recommendation to sustain the
challenge to Bd. Exh. 2, Member Brame relies specifically on the
fact that other markings on this double-marked ballot, i.e., the
smudged diagonal line in the ‘‘Yes’’ box and the 7 ‘‘X’’s in the
‘‘No’’ area of the ballot, including a full ‘‘X’’ in the ‘‘No’’ box,
clearly express the voter’s intent to vote ‘‘No’’ in the election. Ac-
cordingly, Member Brame finds it unnecessary to pass on the
Board’s decision in Bishop Mugavero, supra, because in that case,
unlike here, there were no additional marks on the double-marked
ballot.
5 Apex Paper Box Co., 302 NLRB 67, 68 (1991) (emphasis added;
fn. omitted).
6 All dates are in 1996.
7 The election was conducted on June 27.
to vote ‘‘No’’ in the election. Thus, in Brooks Broth-
ers, supra, where the ‘‘X’’ marked in the ‘‘Yes’’ box
was scratched out by additional markings, the Board
found that the ballot clearly expressed the voter’s in-
tent to vote ‘‘No’’ because the additional markings,
which obliterated the ‘‘X’’ in the ‘‘Yes’’ box, left an
unmistakable ‘‘X’’ in the ‘‘No’’ box. As to Mediplex,
there the Board adopted an administrative law judge’s
finding that the double-marked ballot at issue clearly
expressed the voter’s intent to vote ‘‘No’’ in the elec-
tion where the ‘‘X’’ in the ‘‘No’’ box was heavy,
clear, more intense than the marking in the ‘‘Yes’’ box
and contained a double line on one leg of the ‘‘X,’’
while the ‘‘X’’ in the ‘‘Yes’’ box was lightly marked
and was ‘‘covered by the kind of smudges caused by
an inadequate eraser.’’3
Contrary to the hearing officer, we find that the
facts in the present case are closer to those in Brooks
Brothers and Mediplex than to those in Bishop
Mugavero Center. In this regard, we find that the
smudge mark on the diagonal line in the ‘‘Yes’’ box
of Board’s Exhibit 2 indicates an attempted erasure.
Further, even assuming that there was no smudge mark
in the ‘‘Yes’’ box, we find that the ‘‘X’’ in the ‘‘No’’
box, together with the six additional ‘‘X’’s in the
‘‘No’’ area of Board’s Exhibit 2, clearly express the
voter’s intent to vote ‘‘No’’ in the election. Finally,
our conclusion here is consistent with the Board major-
ity’s reasoning in Bishop Mugavero Center because the
smudge mark and the six additional ‘‘X’’s in the
‘‘No’’ area of Board’s Exhibit 2 constitute the ‘‘other
markings’’ on a double-marked ballot required by the
majority in Bishop Mugavero Center to evidence a
voter’s clear intention in casting a ballot. Accordingly,
as noted above, we shall count Board’s Exhibit 2 as
a ‘‘No’’ vote in the final tally of ballots.4
2. The hearing officer found that 29 employees who
were laid off prior to the eligibility cutoff date for the
election, but who were recalled prior to the election,
had a reasonable expectancy of recall as of the eligi-
bility cutoff date and were therefore eligible to vote in
the election. The hearing officer found the facts that
the Employer had called back nearly 40 percent of the
laid-off employees by the date of the election, that the
Employer’s attempts to attract new customers was on-
going, and that it had a past practice of recalling
former employees, evidenced that as of the eligibility
cutoff date these 29 employees had a reasonable ex-
pectancy of recall ‘‘in the near or foreseeable future.’’
In reaching this conclusion, the hearing officer stated
that he relied ‘‘primarily’’ on the Board’s decisions in
Nordam, Inc., 173 NLRB 1153 (1968), and Interconti-
nental Mfg. Co., 192 NLRB 590 (1971).
The Petitioner excepts to the hearing officer’s find-
ing that the 29 employees at issue here are eligible to
vote on the ground that the hearing officer failed to
apply the Board’s eligibility standard for employees on
layoff as set out in Tony’s Trailer Service, 257 NLRB
878 fn. 3 (1981), and Apex Paper Box Co., 302 NLRB
67 (1991). In this regard, the Petitioner asserts, inter
alia, that the hearing officer, by emphasizing the subse-
quent recall of the employees prior to the election
‘‘rather than the expectancy applicable to all similarly
situated employees on layoff as of the eligibility date,’’
simply substituted for the appropriate standard the fact
that the employees were recalled.
For the following reasons, we find merit in this ex-
ception and therefore find, contrary to the hearing offi-
cer, that the 29 employees who were on layoff status
as of the eligibility cutoff date, but who were recalled
prior to the election, did not have a reasonable expec-
tation of recall as of the eligibility cutoff date and
therefore were not eligible to vote in the election. Ac-
cordingly, we shall sustain the challenges to their bal-
lots.
Initially, we observe that it is well established that
employees laid off prior to the payroll eligibility
period must have had a reasonable expectation of
recall as of the payroll eligibility period in order
to vote in the election, regardless of whether the
employees have been recalled prior to the elec-
tion. Tony’s Trailer Service, 257 NLRB 878 fn. 3
(1981).5
Thus, to determine if these 29 challenged voters had
a reasonable expectancy of recall as of April 28,
1996,6 the agreed-upon payroll eligibility cutoff date,7
we must limit our analysis to events that occurred on
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760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Employer explained that they would be compensated for
their unused vacation and sick days and that their health insurance
would continue for 30 days, with the option to extend coverage be-
yond that time at their own expense.
9 Prior to the April 28 eligibility cutoff date, the Respondent had
recalled only 7 of the 90 employees laid off in February and March.
Between the eligibility cutoff date and the election, the Employer re-
called an additional 37 employees. Of these 37 employees, 29 voted
in the election.
10 We find without merit our dissenting colleague’s contention that
the Employer’s recall of 7 employees laid off in February and March
prior to April 28 and its past practice of recalling laid-off employees
establish that the 29 employees at issue here had a reasonable ex-
pectancy of recall as of the April 28 eligibility cutoff date. The Em-
ployer has failed to show that these recalls were due to improve-
ments in the Employer’s business rather than to normal attrition. See
Apex Paper Box Co., 302 NLRB at 69. Similarly, while the Em-
ployer may have had a past practice of recalling laid-off employees,
this does not establish that the 29 laid-off employees at issue here
had a reasonable expectation of recall as of April 28. In this regard,
we note that while the Employer’s business did in fact improve after
April 28, the Employer has not shown that it predicted, or, indeed,
that it could have predicted, this improvement prior to April 28. See
Tony’s Trailer Service, 257 NLRB 878 fn. 3 (1981). Finally, we also
find misplaced our dissenting colleague’s reliance on the fact that
the Employer’s attempt to attract new business was ongoing. The
fact that the Employer was engaged in an ongoing attempt to attract
new customers prior to April 28 is an insufficient basis to establish
that as of April 28 the 29 employees at issue here had a reasonable
expectancy of recall.
or before that date. As to the analysis, as explained in
Apex Paper Box Co., 302 NLRB at 68 (fns. omitted):
[t]he voting eligibility of laid-off employees de-
pends on whether objective factors support a rea-
sonable expectancy of recall in the near future,
which establishes the temporary nature of the lay-
off. The Board examines several factors in deter-
mining voter eligibility, including the employer’s
past experience and future plans, the cir-
cumstances surrounding the layoff, and what the
employees were told about the likelihood of re-
call.
Before we apply this analysis here, we shall briefly set
out the relevant facts, which are not in dispute.
The Employer instituted two mass layoffs at the St.
Marys’ plant in early 1996. On February 23, the Em-
ployer laid off 56 employees as a result of its decision
to eliminate the second shift on the single index line.
This decision resulted from the Employer’s general de-
cline in sales and the loss of a major contract, as well
as its decision to modify its production process to re-
duce the amount of inventory on hand. On March 29,
the Employer laid off another 34 employees because of
a continued decline in sales.
At the time of the layoffs, the Employer conducted
group meetings with all of the employees to be laid
off, at which time the employees were told that their
layoffs were for an ‘‘indefinite’’ duration, that the Em-
ployer could give them ‘‘no firm and realistic’’ date
for their possible return to work, and that their chances
for recall ‘‘depended’’ since ‘‘things could change.’’
The Employer also explained to these employees their
benefits8 and recall rights and advised them that they
could look for other jobs or apply for unemployment
compensation. In addition, several supervisors offered
to write letters of recommendation for employees
under their supervision. Finally, the Employer advised
employees to keep the plant informed regarding any
changes in their mailing addresses and home telephone
numbers. There were no subsequent communications
between the Employer and the laid-off employees until
the Employer recalled individual employees on short
notice.9
Based on these facts, we find, as noted above, that
the 29 employees at issue here did not have a reason-
able expectation of recall as of April 28, the eligibility
cutoff date. In this regard, both the circumstances sur-
rounding the layoffs and what the employees were told
regarding the duration of the layoffs clearly establish
that the layoffs were for an indefinite duration. As to
the former, a general decline in production due both to
a decline in sales and a change in the production proc-
ess, circumstances which had not changed appreciably
by the April 28 eligibility cutoff date, led to the mass
layoffs in February and March. As to the latter, at the
time of the layoffs, the Employer gave these employ-
ees no assurances that their layoffs would be of short
duration, but, to the contrary, told them that the layoffs
were for an ‘‘indefinite’’ period of time. Consistent
with this position, the Employer compensated them for
their unused vacation and sick leave, and advised them
to look for other jobs or to apply for unemployment
compensation.10
Finally, we find that the hearing officer, in reaching
a contrary result, erred by relying on the fact that near-
ly 40 percent of the laid-off employees were recalled
prior to the election as evidence that the 29 employees
at issue here had a reasonable expectancy of recall as
of the eligibility cutoff date. In this regard, since these
employees, as explained at footnote nine above, were
almost all recalled after the April 28 eligibility cutoff
date, their recall cannot be evidence of a reasonable
expectancy of recall prior to that date. This is espe-
cially true here where, as explained at footnote 10
above, the Employer’s business prospects had not im-
proved appreciably prior to April 28. Further, we find
the hearing officer’s reliance on Nordam, supra, and
Intercontinental Mfg. Co., supra, misplaced. In this re-
gard, we observe that in Nordam, unlike here, the laid-
off employees were told that the layoffs were tem-
porary and that they would be recalled in 2 or 3
weeks, and that in Intercontinental Mfg. Co., the Board
rejected the employer’s assertion that certain employ-
ees had been permanently laid off and were therefore
ineligible to vote in the election where that assertion
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761OSRAM SYLVANIA, INC.
11 Since the challenged ballots of employees Mary Elias and Maria
Imhoff are no longer determinative of the election, we adopt the
hearing officer’s alternate recommendation that they not be opened
and counted.
1 I agree with my colleagues, however, regarding the disposition
of the other issues presented in this case. Specifically, as to Bd. Exh.
2, the double-marked ballot, consistent with my dissent in Bishop
Mugavero Center for Geriatric Care, 322 NLRB 209 (1996), where
I explained that I would have found that the voter there clearly indi-
cated an intention to cast a ‘‘No’’ vote because the instructions on
the ballot tell the voter to ‘‘Mark an ‘X’ in the square of your
choice,’’ and only the ‘‘No’’ box contained such a completed mark,
I would still find that Bd. Exh. 2 clearly expressed the voter’s intent
to vote ‘‘No’’ in the election even if the ‘‘X’’ in the ‘‘No’’ box of
Bd. Exh. 2 was not accompanied by six additional ‘‘X’’s and the
diagonal line in the ‘‘Yes’’ box was not smudged by an apparent
attempt at erasure.
2 I do not rely, however, on the hearing officer’s statements that
he wanted to elevate the employees’ rights in this instance, that it
was not the fault of the 29 employees that they were laid off, or
that these 29 employees chose to accept a call back to work rather
than remain on ‘‘inactive’’ status.
was unsupported by either evidence or a specific offer
of proof.
Since we find that the 29 employees who were re-
called to work after the April 28 eligibility cutoff date
did not have a reasonable expectation of recall as of
that date, we sustain the challenges to their ballots and
shall not count them in the revised tally of ballots.
The revised tally of ballots thus shows 251 votes for
and 230 against the Petitioner, with 2 challenged bal-
lots, an insufficient number to affect the results.11
Since the revised tally of ballots shows that a majority
of ballots have been cast for the Petitioner, we shall
certify the Petitioner as the bargaining representative of
the unit employees.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for International Union of Electronic,
Electrical, Salaried, Machine & Furniture Workers,
AFL–CIO, and that it is the exclusive collective-bar-
gaining representative of the employees in the follow-
ing appropriate unit:
All full-time and regular part-time production and
maintenance employees employed by the Em-
ployer at its Washington Road, St. Marys, Penn-
sylvania facility, excluding all office clerical em-
ployees, salespersons, transport workers and
guards, professional employees and supervisors as
defined in the Act, and all other employees.
CHAIRMAN GOULD, dissenting in part.
I agree with the hearing officer that the 29 employ-
ees who were on layoff as of the April 28, 1996 eligi-
bility cutoff date for the election, but who had been re-
called prior to the election, had a reasonable expecta-
tion of recall as of the eligibility cutoff date, and there-
fore were eligible to vote in the election.1 In reaching
this conclusion, I rely on the facts that the Employer
had recalled several laid-off employees prior to the eli-
gibility cutoff date and that it had a strong past prac-
tice of recalling laid-off employees.2 In this regard, I
note that the Employer apprises employees undergoing
layoff of their extensive recall rights, by order of se-
niority, to any available open job in the plant, includ-
ing those job slots created by new customer orders and
plant expansion as well as by attrition, and that the
Employer does not use temporary workers to perform
unit work. Finally, in finding that these 29 laid-off em-
ployees had a reasonable expectation of return as of
the eligibility cutoff date, I also note that the Employ-
er’s attempts to attract new customers was ongoing.
Accordingly, I would adopt the hearing officer’s rec-
ommendation to overrule the challenges to the ballots
of these 29 employees and direct that their ballots be
opened and counted.
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