Tom Brown Drilling Co. Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1968

172 N.L.R.B. 1267 (N.L.R.B. 1968)

TOM BROWN DRILLING CO.
Tom Brown Drilling Company , Inc. and Local 826,
International Union of Operating Engineers, AFL-
CIO, Petitioner . Case 16-RC-4674
July 23, 1968
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AMD MEMBERS BROWN
AND JENKINS
On February 21, 1968, the Regional Director for
Region 16 issued a Supplemental Decision and
Order in the above-entitled proceeding, in which he
sustained the Petitioner's objections to conduct af-
fecting the election results' and set aside the elec-
tion. Thereafter, in accordance with the National
Labor Relations Board Rules and Regulations, as
amended, the Employer filed a timely request for
review of the Regional Director's Supplemental
Decision on the grounds, inter alia, that he erred
in sustaining the objections on the facts of this case.
By telegraphic order dated March 26, 1968, the
National Labor Relations Board granted the
request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has considered the entire record in
this case with respect to the Regional Director's
determination under review, and makes the follow-
ing findings:
As found by the Regional Director, the election
herein" was conducted at three polling places, in
Midland, Odessa, and Kermit, Texas. The voting
hours at each place were 8 a.m. to 12 noon and
4:30 p.m. to 7 p.m. At the Odessa polling place,
prior to the opening of the polls, the Board agent in
charge noticed that the Employer's observer,
George Christy, had a manila folder with him and
asked him what was in it. Christy told him it was a
copy of the eligibility list. The Board agent in-
formed him that the only list allowed was a list of
employees he intended to challenge and that he was
not allowed to keep or make a list of employees
who had or had not voted. Indeed, Christy earlier
' The tally of ballots for the election showed that of approximately 165
eligible voters, 82 cast ballots, of which 20 were for , and 45 against, the
Petitioner, and 17 were challenged Certain of the objections were
withdrawn by the Petitioner
' See International Stamping, Inc , 97 NLRB 921
1267
had been apprised of this rule at the preelection
conference.
The Petitioner's observer testifies that after the
morning session started he saw Christy raise the
cover of his folder when a man came in and made
some sort of a mark, and that when the Board agent
asked him if he was checking names Christy replied
that he was checking to see whether or not they
were on his list. The Board agent gave Christy an
opportunity to contact the Employer and/or its at-
torney with regard to his keeping this list and after
Christy returned he said he had been told to keep
the list with him.
Christy stated he was told to check the list to see
if the voter was one of the persons he was supposed
to challenge; that initially he put a check mark by
the name of each person who came to vote but that
it was probably not more than three employees; and
that he kept the list with him and referred to it until
the noon break at which time he prepared a hand-
written challenge list which he used during the af-
ternoon voting period.
Contrary to the Regional Director, these facts do
not, in our view, support the conclusion that there
was a substantial violation of the Board's longstand-
ing policy2 which prohibits anyone from keeping a
list of persons who have voted, aside from the offi-
cial eligibility list used to check off the voters as
they receive their ballots. Rather, we have here the
use by one of the Employer's observers, during the
morning voting session at one of three polling
places, of a copy of the voting list to determine
whether the voters as they appear to vote were
among those he had been instructed to challenge.
Although he began by checking off voters on his
list-doing so only as to the first few voters-he
discontinued such practice when warned against it
by the Board agent. Moreover, it is not clear, on
the facts before us, that any voter was aware his
name was being checked off by Christy, since he
kept the separate list concealed in his manila
folder.' In any event, we conclude that any breach
of the aforementioned rule which may have oc-
curred in this case was de minimis and does not
constitute grounds for setting aside the election.4
The objections are therefore overruled.
Accordingly, as the tally of ballots shows that the
Petitioner has not received a majortiy of the ballots
cast in the election, we shall issue a certification of
results.
' Cf A D Julliard and Co, 110 NLRB 2197, 2199, Piggly-Wiggly #011
and #228, Eagle Food Centers, Inc, 168 NLRB 792
' The cases of Piggly- Wiggly #011 and #228, supra, and Bell's Depart-
ment Store of Savannah, Georgia, Inc , 98 NLRB 280, are factually distin-
guishable
172 NLRB No. 133
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF RESULTS OF ELECTION Union of Operating Engineers , AFL-CIO , and that
said labor organization is not the exclusive
representative of the employees in the unit found
It is hereby certified that a majority of the valid appropriate within the meaning of Section 9(a) of
votes has not been cast for Local 826, International the National Labor Relations Act, as amended.