Southland Containers

National Labor Relations Board - Board Decisions

Oct 18, 1993

312 N.L.R.B. 1087 (N.L.R.B. 1993)

1087
312 NLRB No. 161
SOUTHLAND CONTAINERS
1 There is no exception to the Regional Director’s recommendation
to count the challenged ballots.
Southland Containers, Inc. and United Paper-
workers International Union, AFL–CIO, Peti-
tioner. Case 15–RC–7726
October 18, 1993
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
objections to an election held on December 18, 1992,
and the Regional Director’s report recommending dis-
position of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of ballots
shows 17 for and 15 against the Petitioner, with 2
challenged ballots.1
The Board has reviewed the record in light of the
exceptions and brief and adopts the Regional Direc-
tor’s findings and recommendations.
In its Objection 7, the Employer alleged that em-
ployees interfered with the election by ‘‘prepar[ing] a
list of employees who went to vote and [keeping] a
tally regarding each employee’s voting status.’’ The
Employer presented three witnesses to support this ob-
jection. Witness A stated that on the day of the elec-
tion, he and employee B kept a list of how the vote
would turn out. Employee B stated that shortly before
the election employee A showed him a list of employ-
ees, by department, with notations of how A thought
they would vote. Employee B put the list in his pocket,
later examined it, and returned it to A. Witness C stat-
ed that immediately after the polls opened, he went to
A’s machine where A was holding a piece of paper.
Employee C declared that A asked him how he
planned to vote, and said that he was keeping a list to
see who was voting ‘‘Yes’’ and ‘‘No.’’ Employee C
walked away without seeing the paper or responding.
The Regional Director found no evidence that em-
ployees A or B were agents of the Petitioner. He there-
fore considered the allegations under the third-party
standard and found no general atmosphere of fear and
reprisal had been created, rendering a free election im-
possible. Westwood Horizons Hotel, 270 NLRB 802,
803 (1984). Accordingly, the Regional Director rec-
ommended overruling this objection.
The Employer excepts, arguing that it is the Board’s
policy to prohibit anyone—including nonagent employ-
ees—from keeping voting lists during elections. Belk’s
Department Store, 98 NLRB 280 (1952). For the fol-
lowing reasons, as well as those relied on by the Re-
gional Director, we find that this exception lacks merit.
Although the Board, in general, finds keeping any
voting list other than the official Excelsior list to be
objectionable, ‘‘list keeping’’ is a basis for a new elec-
tion only when it can be shown or inferred from the
circumstances that employees knew their names were
being recorded. Piggly-Wiggly #011, 168 NLRB 792
(1967). It has not been established that employee A
was keeping a list of employees who had voted. As-
suming arguendo that employee A kept a list of who
had voted, and used it in connection with his pre-
dictions of the outcome of the election, the evidence
shows that only one or two employees were aware of
this fact. In these circumstances, any list keeping here
would not be sufficient to warrant a new election. Rob-
ert’s Tours, 244 NLRB 818 fn. 1 (1979); Tom Brown
Drilling Co., 172 NLRB 1267 (1968).
DIRECTION
Case 15–RC–7726 is remanded to the Regional Di-
rector for Region 15. The Regional Director shall com-
mingle and open the ballots of Richard Patterson and
Eric Gross. The Regional Director shall determine if
either of these ballots is cast for the Petitioner. If so,
and without issuing a revised tally of ballots, the Re-
gional Director shall certify the Petitioner. If, however,
both ballots are cast against the Petitioner, the issue of
alleged discriminatee Gross’ eligibility shall be con-
solidated with the hearing scheduled in Cases 15–CA–
11973, 15–CA–12023, and 15–CA–12023–2. If Gross
is found to have been lawfully terminated and thus in-
eligible to vote, the Regional Director shall certify the
Petitioner. If, however, Gross, having voted against the
Petitioner, is found to have been unlawfully terminated
and thus eligible to vote, the Regional Director shall
certify the results of the election.