Rheem Mfg. Co.

National Labor Relations Board - Board Decisions

Nov 10, 1992

309 N.L.R.B. 459 (N.L.R.B. 1992)

459
309 NLRB No. 63
RHEEM MFG. CO.
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 Third-shift employees voted during the first voting session sched-
uled from 6:15 to 6:30 a.m.; first-shift employees voted during the
two voting sessions scheduled from 7:30 to 11:30 a.m., and from 1
to 2:30 p.m.; and second-shift employees voted during the voting
session scheduled from 3:30 to 6:30 p.m.
3 The first of these employees was in a wheelchair, having recently
undergone surgery.
4 Two other employees who were scheduled to work later that day
also attempted to vote during the afternoon break. Trimble told these
employees that the polls were closed and they should vote later with
their respective departments.
5 The Board agents had not brought any challenged ballot enve-
lopes to the election.
Rheem Manufacturing Company and United Steel-
workers of America, AFL–CIO, Petitioner.
Case 10–RC–14040
November 10, 1992
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 31, 1990, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 527 votes for and 467
against the Petitioner, with 3 challenged ballots, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, and, for the reasons set forth
below, has decided to adopt the hearing officer’s find-
ings1 and recommendations only to the extent consist-
ent with this decision.
We adopt the hearing officer’s recommendation to
overrule the Employer’s Objections 1, 4 through 7, and
13 through 17. Contrary to the hearing officer’s rec-
ommendation, however, we also overrule the Employ-
er’s Objections 2, 3, and 8 through 11, and shall cer-
tify the Petitioner.
1. Objections 2, 3, and 8 through 10
Objection 2 alleged that the election was conducted
in a manner which conveyed Board bias and prejudice
in favor of the Petitioner and a lack of neutrality by
the Board. Objection 3 alleged that the election was
conducted in a manner which compromised the integ-
rity of the election process and interfered with the fair
operation of the election process. Objection 8 alleged
that the election process, including but not limited to
the handling of certain ballots by the Board agents,
was conducted in a manner which created the appear-
ance of irregularity and impropriety. Objection 9 al-
leged that the Board agents fraternized with, or con-
veyed the appearance of fraternizing with, a Petitioner
representative between voting periods, and thus de-
stroyed confidence in the election process and reason-
ably could be interpreted as impugning the Board’s
standards of integrity and neutrality. Finally, Objection
10 alleged that the Board agent made comments on a
local issue in the campaign which destroyed, com-
promised, or impaired the appearance of neutrality by
the Board.
During the break in voting after the third-shift vot-
ing period had ended at 6:30 a.m.,2 three eligible vot-
ers, one of whom was purportedly having surgery later
that morning and two others who were on vacation, in-
dividually and separately came to the polls and asked
to vote. After getting permission from the parties’ ob-
servers, Board agent Trimble allowed the employees to
vote. Trimble unsealed the ballot box, which had been
taped up at the close of the scheduled voting session,
and the voters deposited their ballots into the box.
Trimble then resealed the box.
Thereafter, while the polls were closed between vot-
ing sessions in the afternoon, three other eligible em-
ployees who were out of work on sick leave3 or vaca-
tion appeared at the polls individually and separately
and asked to vote.4 After getting permission from the
parties’ observers, Trimble allowed these employees to
vote. After marking their ballots, these employees
handed the double-folded ballots to Trimble, who put
each ballot in the breast pocket of his shirt. Trimble
had announced to the observers that he would put the
ballots in his shirt pocket and then would deposit them
in the ballot box when the polls reopened. No chal-
lenged ballot envelopes were used.5
Sometime thereafter, Board agent Harrison, who had
temporarily left the voting area, returned. Trimble told
Harrison, in the presence of the observers, that he had
allowed three employees to vote while the polls were
closed and that when the polls reopened, they should
quietly slip the ballots into the ballot box. Trimble
handed the three folded ballots to Harrison, who put
them in his briefcase. Only the observers were present
during this time. When the parties’ representatives re-
turned to the cafeteria to prepare for the afternoon vot-
ing session, Harrison removed the three folded ballots
from his briefcase and handed them to Trimble, who
explained to the parties, outside the presence of em-
ployees, that these were the ballots of three employees
who had been permitted to vote while the polls were
closed; that he had given the ballots to Harrison to
hold; and that the ballots had been handled only by
himself and Harrison. The Employer’s representative
challenged the ballots, and they were placed in make-
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Although the Employer’s observer could not specifically recall
whether he had voted, he was a third-shift employee and the third
shift had already voted, and at the time the statement was made he
was waiting for an Employer representative to arrive so he could go
home for the day.
7 The hearing officer erroneously stated that two walks through the
plant with Mallory occurred, one with Harrison and one with
Trimble, and that the walk with Trimble was the one witnessed by
employees. The record indicates that only one walk, with Harrison,
occurred.
8 We note again that the hearing officer erroneously stated that it
was Trimble who walked through the plant with Mallory.
shift challenged ballot envelopes. These three chal-
lenged ballots were never counted.
During the morning break between the third- and
first-shift voting sessions, Trimble stated several times
that it was hot in the voting area. At one point Trimble
added that if he had to return to the plant in the future
he might have to file his own petition, and that a large
air-conditioning company like the Employer should be
able to keep the area cool. At the time Trimble made
these statements, one Employer observer and two Peti-
tioner observers were present. One of the Petitioner’s
observers, Mallory, agreed with Trimble’s statement.
The hearing officer found that it appeared that the Em-
ployer’s observer had already voted by the time
Trimble’s statement was made.6 The hearing officer
also stated that it was not clear whether the Petitioner’s
observers had voted by this time. The hearing officer
also found that there was no evidence that Trimble’s
statement was repeated to other eligible voters during
the day of the election.
During this same morning break between the third-
and first-shift voting sessions, Harrison7 announced to
the observers and Trimble that he needed to go to his
car. Mallory volunteered to guide him through the
plant. During the course of this walk, many employees
who had not yet voted saw Harrison, who they did not
know, and Mallory, a known union proponent, con-
versing in a friendly fashion and occasionally laughing
as they walked through the plant.
The hearing officer stated that the conduct of
Trimble in allowing six employees to vote when the
polls were closed is contrary to Board practice and
procedure, but further stated that the observers’ agree-
ment that these employees be allowed to vote tended
to negate, in great respect, the adverse effect such an
occurrence might otherwise have had. The hearing of-
ficer further noted that this is particularly true where,
as here, the ballots involved had no effect on the out-
come of the election. The hearing officer then stated
that aside from conduct which has an actual effect on
elections, the Board is also concerned with assuring
the appearance of neutrality and the integrity of its
election process. She concluded that the receipt by
Trimble of the three ballots in his hand and the ‘‘sub-
sequent bantering about’’ of the unprotected ballots be-
tween the two Board agents, a shirt pocket, and a
briefcase, compromised the integrity of the election
process and constituted conduct which would destroy
confidence in the Board’s election process, citing
Jakel, Inc., 293 NLRB 615 (1989). She further con-
cluded that the Board agents’ impropriety in handling
the ballots as they did, as well as the appearance of
impropriety their conduct necessarily generated, war-
ranted setting aside the election, citing Paprikas Fono,
273 NLRB 1326 (1984).
The hearing officer stated that in different cir-
cumstances Trimble’s comment to observers about his
possible need to file a petition of his own, although in-
appropriate as it showed displeasure with the Em-
ployer, might ‘‘slip by’’ as poor judgment. She also
stated that similarly, ‘‘Trimble’s [Harrison’s]’’8 walk-
ing through the plant talking and laughing with a high
profile union observer might, in isolation, be given the
benefit of the doubt rather than create the impression
among employees of bias in favor of the Petitioner.
She, however, concluded that viewed in the totality of
the circumstances in which the Board agents conducted
this election, the benefit of the doubt is totally mis-
placed. She concluded that the overall ‘‘devil-may-
care’’ attitude that the Board agents, especially
Trimble, exhibited in conducting this election and the
appearance it presented could not be tolerated in the
conduct of Board elections. Accordingly, she rec-
ommended that Objections 2, 3, and 8 through 10 be
sustained.
The Petitioner in its exceptions argues that the elec-
tion should not be set aside on the basis of Board
agent misconduct because the evidence does not cast
a reasonable doubt on the fairness and validity of the
election. The Petitioner further contends that neither
Harrison’s walk through the plant with the Petitioner’s
observer, nor Trimble’s comment about the heat, war-
rants setting aside the election, whether viewed sepa-
rately or cumulatively. For the reasons that follow, we
find merit in the Petitioner’s exceptions.
In order to set aside an election on the basis of
Board agent conduct, the Board must be presented
with facts raising a ‘‘reasonable doubt as to the fair-
ness and validity of the election.’’ Polymers, Inc., 174
NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969),
cert. denied 396 U.S. 1010 (1970). The evidence in
support of the Employer’s objections does not present
such facts. Regarding the three employees who voted
during the afternoon break and whose ballots were
challenged, Trimble obtained the permission of both
the Employer’s and the Petitioner’s observers before
allowing each of the three employees to vote, handled
the double-folded ballots in full view of the observers,
and explained to the observers what he was doing with
the ballots. When Board agent Harrison returned to the
room, Trimble explained what had taken place and
461RHEEM MFG. CO.
9 A Board agent’s failure to follow the Board’s casehandling
guidelines will not necessarily warrant setting aside an election in
the absence of a showing that the deviations from the guidelines
raised a reasonable doubt as to the fairness and validity of the elec-
tion. See Kirsch Drapery Hardware, 299 NLRB 363, 364 (1990).
10 In a similar case in which these factors were not present, K. Van
Bourgondien & Sons, 294 NLRB 268, 269 (1989), the Board de-
clined to set aside an election where the Board agent had retrieved
a challenged ballot from the ballot box, noting that the Board agent
was able to retrieve the challenged voter’s ballot because it was on
top of the pile; the voter was able to identify the ballot as hers be-
cause of a fold on a corner she had made; and the vote on the ballot
had been revealed to no one other than the challenged voter herself.
11 Also, unlike in Paprikas Fono, the challenged ballots here were
not determinative.
12 See also, e.g., Magic Pan, Inc. v. NLRB, 627 F.2d 105 (7th Cir.
1980), enfg. 244 NLRB 630 (1979) (Board agent told union observer
that he had worked at a legal clinic that handled matters for mem-
Continued
gave the ballots to Harrison, who placed them in his
briefcase in full view of the observers. When the par-
ties’ representatives entered the room before the start
of the next voting session, Trimble again explained
what had happened, and Harrison removed the double-
folded ballots from his briefcase and handed them to
Trimble. The Employer then challenged the ballots,
and the ballots were never counted and were not deter-
minative of the election. Thus, although the handling
of these ballots was not in conformance with usual
Board procedures,9 the handling was done in full sight
of the observers; there was no suggestion of tampering,
fabrication, or opening of the ballots; the ballots were
in the Board agents’ custody at all times, and were
never taken from the election area; and the ballots
were never counted and were not determinative of the
election.
Further, we note that Jakel, supra, and Paprikas
Fono, supra, both cited by the hearing officer, do not
support a different result in the instant case. In Jakel,
an employee who was voting subject to challenge
placed her ballot in the ballot bag without first placing
it in a challenge envelope. The Board agent reached
into the ballot bag and removed a ballot which he be-
lieved to be that of the employee’s, and which she
then identified as such, and gave her a replacement
ballot. The Board set aside the election on the basis
that the removal of a ballot from the ballot bag by the
Board agent compromised the integrity of the election
process. In so finding, the Board stated that it could
not be determined with reasonable accuracy whose bal-
lot was extracted from the ballot bag, and that the bal-
lot at issue was one of three challenged ballots which
were determinative of the election.10 Here, in contrast
to Jakel, the Board agent’s conduct did not impugn the
integrity of the election in the same way that removing
a ballot from the ballot box would, and the three bal-
lots at issue were not determinative of the election re-
sults.
We similarly find that the conduct in Paprikas
Fono, supra, in which the Board set aside the election,
was considerably more compromising of the election’s
validity than the conduct in the instant case. In
Paprikas Fono, the Board agent erroneously failed to
put 21 determinative challenged ballots into an enve-
lope in the presence of the parties. Rather, he put the
challenged ballots into a large envelope the next day,
when the parties could not verify that he had followed
the proper procedures. Even more serious in the
Board’s view, was the Regional Office’s subsequent
conduct in opening the envelope to inspect the condi-
tion of the ballots outside the presence of any of the
parties. Thus, the parties were deprived of the oppor-
tunity to monitor the Region’s handling of the deter-
minative challenged ballots and to assure themselves
that the challenge envelopes were secure, and the
Board concluded that the appearance of irregularity
created by the procedures used raised a reasonable
doubt as to the fairness and validity of the election.
Paprikas Fono, supra at 1328. In contrast, here the ob-
servers were present at all times and could view the
Board agent’s handling of the ballots, the Board agent
explained to the observers what he was doing with the
ballots at each step, and the ballots were never taken
from the election area; thus, a reasonable doubt as to
the fairness and validity of the election was not
raised.11
We also find that Trimble’s comment about the heat
in the plant and Harrison’s walking through the plant
with the Petitioner’s observer Mallory do not warrant
setting aside the election, whether considered sepa-
rately or cumulatively. Regarding Trimble’s comment
about the heat, we note that it was heard only by three
observers, and there was no evidence that the comment
was repeated to other employees. The hearing officer
found that the Employer’s observer who was present
when Trimble’s remark was made had apparently al-
ready voted. She further found that it was unclear
whether the two Petitioner’s observers who were
present had voted, but she noted that Trimble’s com-
ment would have less impact on employees already
supportive of the Petitioner. We find that the instant
case is similar to cases in which the Board has upheld
election results notwithstanding improper comments by
Board agents. For example, in NLRB v. Allen’s I.G.A.
Foodliner, 652 F.2d 594, 595 (6th Cir. 1980), enfg.
236 NLRB 1342 (1978), the Board agent stated to the
employer’s observer that ‘‘if the employees had been
treated right she would not be there holding the elec-
tion.’’ The Sixth Circuit noted that the Board agent’s
comment was improper, but it was not prejudicial, in
view of the fact that no voters were present in the poll-
ing place when the remark was made, the remark was
made at a time when most of the voters had cast their
ballots, and there was no evidence that the remark was
relayed to any voter who had not yet voted.12 Here, in
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bers of the union); and NLRB v. Dobbs Houses, 435 F.2d 704 (5th
Cir. 1970), enfg. 172 NLRB 1781 (1968) (Board agent stated to ob-
servers that he thought the union would win the election and that
it would do the people a lot of good).
13 Abbot Laboratories v. NLRB, 540 F.2d 662, 665 fn. 1 (4th Cir.
1976).
14 The Sixth Circuit distinguished that case from Athbro Precision
Engineering Corp., 166 NLRB 966 (1967), vacated sub nom. Elec-
trical Workers IUE v. NLRB, 67 LRRM 2361 (D. D.C. 1968), on
remand 171 NLRB 21 (1968), enfd. 423 F.2d 573 (1st Cir. 1970),
in which the Board set aside an election where a Board agent was
seen between voting periods having a beer with a union representa-
tive, stating that the situation in Athbro would imply to any witness
a social or business bond between the agent and union representa-
tive, whereas in Michigan Rubber the situation could be based en-
tirely on practical logistics. The Sixth Circuit also distinguished Pro-
vincial House v. NLRB, 568 F.2d 8 (6th Cir. 1977), denying enf. 222
NLRB 1300 (1976), in which a Board agent was seen at a restaurant
where a union organizational meeting was taking place and the agent
was introduced at the meeting, on the basis that allowing a union
representative to carry the polling booth to an agent’s car does not
rise to the same level of conduct as a Board agent being introduced
at a union meeting.
15 The hearing officer found and we agree that the members of the
VOC were not agents of the Petitioner.
16 The voting took place in the cafeteria.
17 There had been concern among the employees for several years
that the Employer did not select minorities, particularly blacks, for
promotion to supervisory positions. On the day of the election, the
Petitioner’s observer challenged a white female voter who she erro-
neously thought had been promoted to a supervisory position. The
rumor that this woman had been promoted to a supervisory position
spread through the plant on election day. We agree with the hearing
officer’s recommendation that the Employer’s Objection 13, which
alleged that the Petitioner communicated inflammatory information
in order to induce employees to vote for the Petitioner, be overruled.
18 Employees also lined up to vote inside the cafeteria. At times,
there were 40 or 50 employees waiting to vote inside the cafeteria.
view of the fact that Trimble’s comment was made
only to observers (and the Employer’s observer had al-
ready voted), and there was no evidence that the com-
ment was repeated to other employees, we find that the
comment was not prejudicial. Moreover, even though
the comment concerned an issue in the campaign, the
heat of the plant, we do not find that the comment was
so extreme as to justify setting aside the election in the
absence of prejudice on the theory that it destroyed the
appearance of the Board’s impartiality.13
Similarly, we do not find that Harrison’s walking
through the plant with Mallory impugned the Board’s
neutrality or gave the appearance of fraternization so
that the election should be set aside. In Calcor Corp.,
106 NLRB 539, 541 (1953), the Board held that no in-
ference of Board support of the petitioner would be
likely to be drawn by employees merely because a
Board agent walked with the petitioner’s representative
through the plant to inspect the polling place on elec-
tion day. Further, in NLRB v. Michigan Rubber Prod-
ucts, 738 F.2d 111 (6th Cir. 1984), enfg. 251 NLRB
74 (1980), the Sixth Circuit stated that a Board agent’s
allowing the union representative to carry the voting
booth to the agent’s car while the agent carried the
ballot box and election kit, although perhaps impru-
dent, did not give the appearance of fraternization and
could not have had any effect on the outcome of the
election.14 As in Michigan Rubber, we find that the
conduct here of Harrison being walked through the
plant by Mallory, even with the two of them talking
and laughing, does not impugn the Board’s neutrality
or give the appearance of fraternization so as to war-
rant setting aside the election.
In sum, although we do not condone the Board
agents’ conduct here, we 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
the election aside. Thus, we overrule the Employer’s
Objections 2, 3, and 8 through 10.
2. The Employer’s Objection 11
The Employer’s Objection 11 alleged that the Peti-
tioner engaged in electioneering at or near the polls
during the election.
During the first- and third-shift voting sessions, em-
ployee Moore, a member of the Petitioner’s Volunteer
Organizing Committee (VOC),15 spent substantial peri-
ods of time immediately outside the cafeteria doors,16
talking to employees and loudly encouraging them to
vote for the Petitioner as they entered the cafeteria to
vote. Moore wore a union T-shirt and hat displaying
the words, ‘‘Union Yes.’’ Sometimes, due to the large
number of employees attempting to enter the cafeteria
at one time, potential voters backed up in a line out-
side the cafeteria’s doors. Moore’s statements could
not be heard inside the cafeteria. Moore also some-
times accompanied groups of employees as they
walked to the cafeteria from their departments, talking
with them and otherwise shouting and encouraging
them to ‘‘vote yes.’’
At around 2 p.m., employee William Burnett Sr.,
also a VOC member, was released with his department
to vote. Burnett began campaigning loudly for the Peti-
tioner as his department’s 60 or so employees walked
to the cafeteria. On reaching the cafeteria, Burnett re-
mained outside while the other employees stood in line
to enter the cafeteria, and he loudly and continually
urged the employees to vote for the Petitioner. Burnett
also repeatedly asked potential voters if they knew that
a white female had been promoted to a supervisory po-
sition over more senior black men.17 Burnett did not
continue to campaign once he entered the cafeteria.
The hearing officer found that the majority of eligi-
ble voters were scheduled to vote during the times that
Moore and Burnett were campaigning immediately
outside the voting area doors and in a place where em-
ployees often lined up to enter the polling place.18 The
hearing officer further noted that although the cafeteria
had been designated as the voting area and signs were
placed on the outside of the cafeteria doors stating that
463RHEEM MFG. CO.
19 The hearing officer noted that it appeared that this area was not
patrolled, reviewed, or otherwise considered by the Board agents to
be part of the area under their control for voting purposes. She also
noted that on one occasion, a Board agent ensured that all the voters
were inside the cafeteria before commencing the voting.
20 In view of our finding that the electioneering conduct here was
not objectionable even if it occurred within a no-electioneering area,
we find it unnecessary to pass on the hearing officer’s finding that
the area immediately outside the cafeteria doors was part of the vot-
ing area. In so finding, we note that the area outside the cafeteria
doors was not the actual polling place, and that once inside the cafe-
teria the employees had time to reflect on their voting decision free
of interference, as employees also lined up inside the cafeteria wait-
ing to vote.
it was the polling area, the Board agents had not spe-
cifically designated the area right outside the cafeteria
doors as a no-electioneering area.19
The hearing officer found, however, that the area
immediately outside the cafeteria doors and adjacent
thereto constituted part of the voting area, citing Pepsi-
Cola Bottling Co., 291 NLRB 578 (1988), and
Westwood Horizons Hotel, 270 NLRB 802 (1984).
Further, citing Milchem, Inc., 170 NLRB 362 (1968),
she stated that the Board has long held that ‘‘the po-
tential for distraction, last minute electioneering or
pressure, and unfair advantage from prolonged con-
versations between representatives of any party to the
election and voters waiting to cast ballots is of suffi-
cient concern to warrant a strict rule against such con-
duct, without inquiry into the nature of the conversa-
tion.’’ She concluded that in view of the foregoing, the
sustained campaigning on behalf of the Petitioner by
employees Moore and Burnett constituted objection-
able conduct. She also stated that although the
Milchem rule refers to representatives of the parties,
the Board held in Pepsi-Cola that conduct of this na-
ture by nonagents is also violative of the rule. She
therefore recommended that Objection 11 be sustained.
The Petitioner in its exceptions contends that the
hearing officer misapplied the Milchem standard to this
case. The Petitioner also contends that under the appli-
cable third-party standard, the electioneering here does
not warrant setting aside the election. We find merit in
the Petitioner’s exceptions.
We note first that the hearing officer misapplied the
Milchem standard to the facts of this case. The
Milchem standard applies to parties or representatives
of parties, and the Board in Pepsi-Cola, supra, did not
extend the Milchem standard to nonparties. Thus, as
the electioneering here was engaged in by nonagent
employees, the proper standard to be applied is the
third-party standard, i.e., ‘‘whether the conduct at issue
so substantially impaired the employees’ exercise of
free choice as to require that the election be set
aside.’’ Southeastern Mills, 227 NLRB 57, 58 (1976).
We further find Pepsi-Cola distinguishable from the
instant case. In Pepsi-Cola, during the first 15 to 25
minutes of the election, approximately 20 union sup-
porters (out of a unit of approximately 100) formed
lines on both sides of the aisleway outside the lunch-
room (the voting area), perpendicular to the line of
employees waiting to vote. The Board in Pepsi-Cola
described this situation as forcing employees to pass
through a ‘‘gauntlet’’ on their way to vote and to be
subjected to the union supporters’ chants, cheers, clap-
ping, and remarks, the effect of which the Board found
to be magnified by the line formation. The Board also
attached greater significance to the boisterous prounion
conduct of the union supporters because it occurred
within what the Board found to be a no-electioneering
area. The Board concluded that in these circumstances,
and particularly because the election margin was only
one vote, the election did not reflect the free choice of
the employees and should be set aside.
In the instant case, at any given time there was only
one employee union supporter outside the cafeteria
doors urging the employees to vote for the Petitioner,
rather than a line of union supporters, and there was
nothing like the ‘‘gauntlet’’ that employees had to pass
through in Pepsi-Cola. In these circumstances, even as-
suming that the electioneering conduct here occurred
in a no-electioneering area,20 we do not find this third-
party conduct to be so coercive and disruptive as to
substantially impair the employees’ exercise of free
choice. Southeastern Mills, supra; Firestone Textiles
Co., 244 NLRB 168, 170 (1979); NLRB v. Aaron Bros.
Corp., 563 F.2d 409, 412 (9th Cir. 1977), enfg. 223
NLRB 1179 (1976).
In conclusion, contrary to the hearing officer, we
overrule the Employer’s Objections 2, 3, and 8 through
11. Accordingly, as the tally of ballots shows that the
Petitioner has received a majority of the valid ballots
cast, we shall certify it as the collective-bargaining
representative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for United Steelworkers of America,
AFL–CIO, and that it is the exclusive collective-bar-
gaining representative of the employees in the follow-
ing appropriate unit:
All regular full-time production and maintenance
employees employed by the Employer at its
Milledgeville, Georgia, plant, including group co-
ordinators, but excluding summer temporary em-
ployees, all technical employees, sales employees,
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
MEMBER OVIATT, dissenting.
I would, like the hearing officer and for her reasons,
set the election aside based on the conduct of the
Board agents. The majority explains away each aspect
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and item of the objectionable conduct on a logical,
legal basis. That cannot, however, remove the overall
impression of the conduct of this election. The Board
must persevere in its efforts to provide employees with
the laboratory conditions for voting that we have his-
torically sought. That may be accomplished here only
by setting this election aside and properly conducting
a new election.