Sawyer Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1331 (N.L.R.B. 1998)

SAWYER LUMBER CO., L.L.C. 1331
Sawyer Lumber Co., L.L.C. and United Paperwork-
ers International Union, AFL–CIO, CLC, Petitioner.
Case 30–RC–5981
September 30, 1998
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held March 19, 1998, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The final tally of ballots shows 37 votes for and 36
against the Petitioner.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the hearing officer’s find-
ings1 and recommendations, and finds that a certification
of representative should be issued.
The Employer excepts to the hearing officer’s recom-
mendation to overrule its Objections 1 through 7, which
allege that conduct by the Board agent in charge of the
election compromised the integrity of the election and,
thus, requires that the election be set aside and a new
election ordered. As explained below, we find no merit
in the Employer’s objections. Accordingly, we shall
certify the Petitioner.
Objection 1
The Employer alleges that the Board agent closed the
polls on election day before the 6:30 p.m. time2 agreed to
by the parties, thereby disenfranchising eligible voters.
Specifically, the Employer contends that the Board agent
began dismantling the voting booth at 5:58 p.m. It fur-
ther contends that, at about 6:15 p.m., the Board agent
began rearranging the furniture in the voting room in
preparation for the election tally, rearranged the NLRB
election signs inside the voting room, and removed the
sole sign posted outside the voting room.3 It is undis-
puted, however, that 73 of the 75 eligible employees had
voted by 6 p.m. No eligible voter appeared at the polls
after the Board agent began his preliminary activities.4

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
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 The parties originally agreed to conduct the election between 2 and
5 p.m. EST, but later agreed to extend the voting period from 2 to 6:30
p.m. The notice of election that was posted by the Employer accurately
reflected the 2–6:30 p.m voting period. There is no claim that eligible
voters were aware of or confused by the change in the voting period.
3 As noted by the hearing officer, the evidence varies as to the exact
time of these events. No witness testified that any of these activities
commenced any earlier than the times alleged by the Employer.
4 The Excelsior list contained 78 names. Prior to the election, the
parties agreed to strike 3 of the names, leaving 75 eligible voters. Both
of the eligible employees who did not vote appeared at the hearing.
One testified that he elected to stay home and sleep rather than vote in
the election. The other testified that he could not vote because he was
out of town for reasons unrelated to the business of the Employer.
Thus, it is clear that the failure of the two employees to vote was
wholly unrelated to the Board agent’s conduct. All eligible voters are
thus accounted for, and there is no showing that any voter was disen-
franchised by the Board agent’s conduct. No party has alleged objec-
tionable conduct in relation to the Excelsior list.
The evidence reveals that the Board agent undertook
some preliminary preparations in anticipation of the end
of the voting period and the tally of ballots. We find,
however, that his activity did not constitute an early clos-
ing of the polls. The door to the voting room remained
open from 6 to 6:30 p.m. and at least one election sign
remained posted inside.5 The Board agent and the elec-
tion observers remained on duty and ready to accept the
ballot of any eligible employee who might have shown
up to vote. Although the voting booth may have been
partially or wholly dismantled sometime before 6:30
p.m., the Board agent was prepared to reassemble the
booth if necessary and could have done so expedi-
tiously.6
Objections 2–5
The Employer contends that the Board agent allowed
the election observers to take four breaks during the elec-
tion and took one break himself, thereby exposing the
ballot box and the blank ballots to tampering, and fur-
ther, that the Petitioner’s election observer talked with
employees who were eligible to vote during one of the
breaks.
When the integrity of the election process is chal-
lenged, the Board must decide whether the facts raise a
“reasonable doubt as to the fairness and validity of the
election.” Dunham’s Athleisure Corp., 315 NLRB 689
(1994), quoting Allied Acoustics, 300 NLRB 1181
(1990). In Polymers, Inc. v. NLRB, 414 F.2d 999, 1004
(2d Cir. 1969), enfg. 174 NLRB 282 (1969), the court
held as follows:

A per se rule [setting an election aside if there is
a] possibility [of irregularity] would impose an

5 The Board has held that the failure of a Board agent to post any
voting signs designating a polling area is not objectionable conduct.
Pacific Grain Products, 309 NLRB 690, 690–691 (1992).
6 The Board has held that merely dismantling a voting booth before
the agreed-upon closing time is not a basis for setting aside an election
when there is no showing that any eligible voter was disenfranchised.
O.K. Van & Storage, 122 NLRB 795, 796 (1958). The Employer con-
tends that the Board agent’s dismantling of the voting booth is inconsis-
tent with the requirements of the NLRB Casehandling Manual (Part
Two), Representation Proceedings. As the hearing officer correctly
noted, it is well settled that the provisions of the Casehandling Manual
are not binding rules and are merely intended to provide guidance. See
Queen Kapiolani Hotel, 316 NLRB 655 (1995), and cases cited there.
The Board does not invalidate an election based on deviations from the
Manual’s guidelines that do not raise a “reasonable doubt as to the
fairness and validity of the election.” Kirsch Drapery Hardware, 299
NLRB 363, 364 (1990), quoting Polymers, Inc., 174 NLRB 282 (1969),
enfd. 414 F.2d 999 (2d Cir. 1969).
326 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1332
overwhelming burden in a representation case. If
speculation on conceivable irregularities were unfet-
tered, few election results would be certified, since
ideal standards cannot always be attained.

As we explain below, we find that the Employer’s Ob-
jections 2–5 amount to little more than speculation about
the possibility of irregularity and, thus, do not raise a
reasonable doubt as to the fairness and validity of the
election.
We turn first to the Employer’s allegations that the bal-
lot box was subject to tampering during breaks taken by
the Board agent and the election observers. As an initial
matter, we note that the number of ballots cast in the
election—73—matched the observers’ checkoff on the
Excelsior list of the names of 73 eligible employees who
actually voted. Thus, it is clear that no extra ballots were
cast.
Neither election observer was ever alone with the bal-
lot box. The Board agent instructed the observers that
they were required to accompany one another on breaks
and that they should not discuss the election between
themselves or with others. The observers complied with
these instructions. Further, the ballot box was never left
unattended.7 The Board agent stayed in the voting room
and maintained control over the box while the observers
were out of the voting room. Conversely, when the
Board agent took his break, the ballot box remained in
the voting room under the “watchful eyes” of both elec-
tion observers.8 There is no evidence that anyone tam-
pered with the ballot box while either the Board agent or
the observers were out of the voting room. During the
Board agent’s break and one of the observers’ breaks, a
voter came to cast a ballot and was instructed to wait
until the Board agent and observers were all present in
the voting room. The voters did so, without incident, and
without tampering with the ballot box or otherwise inter-
fering with the election process. In agreement with the
hearing officer, we find no evidence of any security
breach involving the ballot box or the ballots, nor evi-
dence that the integrity of the election was compromised
in any way by the Board agent’s conduct.

7 Compare Austill Waxed Paper, 169 NLRB 1109 (1968) (election
result overturned where the ballot box and balloting areas were left
wholly unattended).
8 The Employer contends that the Board agent’s failure to tape the
ballot box closed does not meet the requirements of the NLRB Case-
handling Manual. As noted elsewhere in this decision, the Casehan-
dling Manual provides guidelines rather than procedural rules. Mere
failure to strictly follow the Manual’s guidelines is not objectionable
conduct. The evidence regarding whether the Board agent sealed the
ballot box during his or the observers’ breaks is inconclusive. It ap-
pears that he may have sealed the box with tape during the observers’
first break but not thereafter. The Board has held that a Board agent’s
failure to tape a ballot box is not objectionable when the evidence indi-
cates that the ballot box was never left wholly unattended. See Anchor
Coupling Co., 171 NLRB 1196 (1968).
We turn next to a related contention regarding the
safeguarding of blank ballots by the Board agent.9 The
contention is that at times during the voting period the
Board agent left the blank ballots resting on the table
where he and the observers were sitting and, thus, ren-
dered them subject to tampering. The evidence shows
that the Board agent either held the blank ballots in his
hands or placed them on a table immediately in front of
where he sat during the election period. Thus, the hear-
ing officer found that the Board Agent “maintained vigi-
lance” over the blank ballots at all relevant times. There
is no evidence that anyone touched or tampered with the
blank ballots at any time when they might have been
resting on the table in front of the Board agent, rather
than in his hands.
The Board agent and the Petitioner’s election observer
testified that the Board agent took the blank ballots with
him when he took a restroom break. The Employer’s
election observer could not recall whether the Board
agent took the blank ballots with him. There is no evi-
dence that he did not. Thus, the hearing officer found it
“likely” that the Board agent took the blank ballots with
him when he went on break. He found, in any case, that
both observers stayed behind in the voting room and
maintained vigilance over the blank ballots, as well as
the ballot box, in the Board agent’s absence. Neither the
election observers nor the Employer, in its objections,
alleged that the blank ballots had been tampered with or
handled by anyone other than the Board agent during the
Board agent’s absence. Accordingly, in agreement with
the hearing officer, we find that the Board agent’s han-
dling of the blank ballots was not objectionable conduct.
See Anchor Coupling Co., supra; General Electric Co.,
119 NLRB 944 (1957).
In finding that the Board agent’s handling of the ballot
box and the blank ballots was unobjectionable, we do not
minimize the important responsibility that the Board
places on the Board agent in charge of an election to
safeguard the ballot box and ballots against tampering
and to maintain the integrity of the election process. We
merely find that, here, there is no evidence that the ballot
box or the ballots were left unattended at any time, or
that they were tampered with, or that the Board agent’s
handling of the ballots and ballot box raised any reason-
able doubt about the integrity of the election.
Finally, we address the Employer’s allegation that the
Petitioner’s election observer talked with employees who
were eligible to vote when the observer went to the
lunchroom to purchase drinks during a break. At most,
the evidence shows that, as the election observers entered
the lunchroom, one eligible voter said to the Petitioner’s
9 Although the Board agent’s handling of the blank ballots was not
the subject of timely filed objections, we agree with the hearing officer
that this matter is sufficiently related to the Employer’s objections to
warrant consideration.
SAWYER LUMBER CO. 1333
observer, “How’s it going?” The Petitioner’s observer
responded “good” and continued on to purchase a drink.10
The Board’s Milchem rule prohibits “prolonged con-
versations between representatives of any party to the
election and voters waiting to cast ballots.” Milchem,
170 NLRB 362 (1968). However, a “chance, isolated,
innocuous comment or inquiry” will not “necessarily
void the election.” 170 NLRB at 363. Accord: Textile
Workers v. NLRB, 815 F.2d 225 (2d Cir. 1987); NLRB v.
Oesterlen Services for Youth, 649 F.2d 399 (6th Cir.
1981), cert. denied 454 U.S. 1031 (1981).
Here, the exchange between the Petitioner’s observer
and the employee did not occur in the polling area while
the employee was waiting in line to vote. Rather, it oc-
curred in the lunchroom during a break. But, even as-
suming arguendo that the Milchem rule applies to this
conduct, we agree with the hearing officer that it was
nothing more than an “innocuous ‘social pleasantry’
[that] would not have influenced any voter.” As de-
scribed by the Employer’s observer, the exchange was
initiated by the employee and made no reference to the
election. The Petitioner’s observer gave a one-word ac-
knowledgment, without reference to the election, and
continued about his business. Accordingly, we find that
the exchange is not objectionable conduct warranting a
new election.
Objection 6
The Employer alleges that the “NLRB agent allowed
conversation between Petitioner’s Observer and voting
employee(s) in the voting area.” In support of this objec-
tion, the Employer contends that Mike Wirtanen, an eli-
gible voter, entered the voting room and, speaking to
nobody in particular, asked if he had to wait until his
assigned time to vote.11 It appears that the Board agent
told Wirtanen that he could vote immediately. Wirtanen
then attempted to discuss a business-related matter with
the Petitioner’s observer, specifically, Wirtanen’s failure

10 It is not clear whether this employee had voted before he greeted
the Petitioner’s observer in the lunchroom. Contrary to the Employer’s
assertion in its brief, there is no evidence that “[Petitioner’s observer]
was asked how the election was going.” The Employer’s observer
testified as set forth above. She had received the same instruction as
had the Petitioner’s observer yet, significantly, she did not complain to
the Board agent about the alleged conversation on the observers’ return
to the voting room several minutes later. The Petitioner’s observer did
not recall having a “conversation” with anyone in the lunchroom. He
did recall that when the Board agent instructed the observers not to talk
to anyone during the election period, he expressed to the Board agent
his “worry” that his fellow employees, whom he always greeted, might
“get mad” if he ignored their greetings. The Board agent told the Peti-
tioner’s observer that returning greetings “probably wouldn’t be a good
idea,” and the observer agreed.
11 Although the notice of election provided that eligible employees
could vote at any time during the election period, it appears that the
Employer assigned employees specific voting times in an effort to
minimize disruption of work. It appears that Wirtanen was attempting
to vote at shift change. There are no objections to the Employer’s
assignment of voting times or Wirtanen’s attempt to vote at other than
his assigned time.
to refuel a piece of equipment at the end of a shift.12 The
Board agent ascertained that the matter was, indeed,
strictly job-related before giving the Petitioner’s observer
permission to talk to Wirtanen.13 Upon learning that Wir-
tanen had not refueled the equipment, the Petitioner’s
observer replied “don’t worry about it.” No other voters
were present during the conversation.
The Employer contends that the Petitioner’s observer’s
excuse of Wirtanen’s failure to “complete all of his as-
signed tasks” constitutes favorable treatment of Wirtanen
by the Petitioner’s observer “the effect [of which] . . . on
Wirtanen’s vote cannot be ignored.” The Employer did
not adduce any evidence in support of this contention.
We do not find objectionable the conversation between
Wirtanen and the Petitioner’s observer. The conversa-
tion was brief, strictly work related, and did not touch on
the election. Thus, we find that this conversation did not
run afoul of the Milchem rule, discussed above. We find
no merit in the Employer’s bare speculation regarding
the alleged “favorable treatment” of Wirtanen by the
Petitioner’s observer. Accordingly, we overrule Em-
ployer’s Objection 6.
Objection 7
The Employer contends that the Board agent
“breached the security of the polling area” by unlocking
a door in the voting area, asking if the Petitioner’s ob-
server would like to go outside and smoke, and looking
outside the door before relocking it. Thus, according to
the Employer, “This clear deviation from the security
provided to the polling area, particularly when consid-
ered in total with [the Board agent’s] other misdeeds,
clearly requires that the election results be set aside.”
We find no merit in this objection. It is undisputed
that, in conjunction with a discussion whether Peti-
tioner’s observer would take a smoking break,14 the
Board agent unlocked one of several doors in the voting
room—one which lead to the outside of the facility—and
that he looked outside the door for a moment before re-
securing it. Nobody entered or exited from the open
door. There is no evidence that any voters were present
while the door was open. The Employer has failed to
show how merely opening and closing a door tainted the
laboratory conditions for the election and warrants that
the result be overturned.
12 Wirtanen was filling in at work for the Petitioner’s observer dur-
ing the observer’s duty at the election.
13 Wirtanen testified that both the Board agent and the Petitioner’s
observer responded to his question whether he could vote immediately.
The Petitioner’s observer testified that the Board agent, alone, re-
sponded. Wirtanen and both election observers agree that Wirtanen did
not discuss the business issue with the Petitioner’s observer until he had
obtained permission from the Board agent.
14 The Petitioner’s observer testified that he inquired about taking a
smoking break but declined to do so, after obtaining permission from
the Board agent, because he did not want to violate the Employer’s no-
smoking policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1334
Having found no merit in the Employers objections,
we shall certify the representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for United Paperworkers International Union,
AFL–CIO, CLC, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Gwynn, Michigan, facility, but excluding office em-
ployees, clerical employees, forestry staff and scalers,
quality control staff, professional employees, guards
and supervisors, as defined in the Act.