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San Diego Gas & Electric
325 NLRB No. 218

             DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

 
 San Diego Gas and Electric and International Brotherhood of Electrical 
     Workers, Local Union 465, AFL-CIO, Petitioner. Case 21-RC-19862

                              JULY 21, 1998

                      DECISION ON REVIEW AND ORDER

     BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME

    On December 3, 1997, the Acting Regional Director for Region 21 
issued a Decision and Direction of Election, in which he directed that 
an election be conducted among the employees in the unit found 
appropriate.\1\ No party filed a Request for Review from the Regional 
Director's Decision and Direction of Election. On December 9, 1997, the 
Region notified the parties that it was considering conducting the 
election by mail ballot, and invited the parties to submit position 
statements concerning the appropriateness of a mail ballot election. The 
Employer submitted a position statement opposing a mail ballot, 
requesting that the election be held at two of the Employer's sites, and 
offering to provide transportation as needed or requested. The 
Petitioner filed a position statement stating its preference for a mail 
ballot rather than a manual ballot. On December 18, 1997, the Acting 
Regional Director informed the parties that the election would be 
conducted by mail ballot, because the 20 unit employees work at 8 
different locations spread across an area of over 80 miles.
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    \1\The unit found appropriate by the Regional Director is as 
follows:
            All dispatchers, dispatch assistants, and district clerks 
        employed by the Employer in its construction and operation 
        districts, at the following facilities: Mountain Empire 
        District, Pine Valley, California; Eastern District, El Cajon, 
        California; Metro District, 701 33rd Street, San Diego, 
        California; Beach Cities District, 4848 Santa Fe Street, San 
        Diego, California; North Coast District, Carlsbad, California; 
        Northeast District, Escondido, California; Orange County 
        District, San Clemente, California; and the Ramona Satellite 
        Office, Ramona, California; excluding all other employees, 
        clerical employees, professional employees, guards, and 
        supervisors as defined in the Act.
---------------------------------------------------------------------------
    On December 24, 1997, the Employer, pursuant to Section 102.67(c)(1) 
and (2) of the Board's Rules and Regulations, filed a Request for Review 
of Regional Director's Decision to Conduct Election by Mail Ballot. The 
ballots for the election were mailed on January 5, 1998, and the 
election has been conducted and the ballots have been impounded pending 
the Board's ruling on the Employer's request for review.
    The Employer contends that the Acting Regional Director's decision 
to hold a mail ballot election is contrary to the Board's rules, citing 
to the NLRB Casehandling Manual (Part Two), Representation Procedures 
(Casehandling Manual), Section 11336, which states that ``the use of 
mail balloting, at least in situations where any party is not agreeable 
to the use of mail ballots, should be limited to those circumstances 
that clearly indicate the infeasibility of a manual election.'' The 
Employer contends that infeasibility of a manual election has not been 
shown, based on factors set forth in Section 11336 of the Casehandling 
Manual, because the parties have stipulated that ``the employees in 
question all `work a set schedule' at essentially the same time each 
day.''
    Having duly considered the matter, the Board has decided to grant 
the Employer's request for review, and, on the merits, to affirm the 
Acting Regional Director's decision to hold the election in this case by 
mail ballot.

                          I. FACTUAL BACKGROUND

    The Employer is a utility providing gas and electrical services in 
San Diego and Orange Counties, California. The unit which the Petitioner 
is seeking to represent consists of some 20 dispatchers who work at 8 
locations in southwest California.\2\
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    \2\The eight locations are the Metro District and the Beach Cities 
District, both located in San Diego; the Eastern District, in El Cajon; 
the Mountain Empire District, in Pine Valley; the Ramona Satellite 
Office, in Ramona; the Northeast District, in Escondido; the North Coast 
District, in Carlsbad; and the Orange County District, in San Clemente.
---------------------------------------------------------------------------
    On December 9, 1997, the Region notified the parties by letter that 
it was considering conducting the election by mail ballot. The letter 
solicited the views of the parties in this regard and also asked each 
party to propose ``an appropriate logistical sequence (times and 
places)'' to be followed if the election were to be conducted manually.
    The Petitioner took the position that a mail ballot election was 
preferable because the unit employees were scattered over 8 locations 80 
miles apart. In response to the Region's request for a manual election 
alternative, the Petitioner submitted two possible scenarios for a 
traveling election, under which a Board agent would drive sequentially 
to each of the eight locations, conducting manual balloting at each.
    The Employer responded that a mail ballot was not appropriate and 
proposed instead that a manual election be held at two locations: its 
Northeast District office in Escondido and its Century Park facility in 
San Diego. In its letter to the Regional Director proposing the two-site 
election, the Employer stated that it would ``provide transportation as 
needed or requested'' but otherwise made no proposals as to how and at 
what times the balloting should be conducted. Neither did it comment on 
the Petitioner's suggestion that an eight-site traveling election would 
be the best alternative if a manual election was ordered.
    Under the Employer's proposal, 11 employees would vote at the 
Century Park location: 3 from the Beach Cities office (6 miles away), 4 
from the Metro office (10 miles away), 3 from the Eastern office (14 
miles away) and 1 from the Mountain Empire office (60 miles away). Of 
the other nine employees, who would vote at the Northeast District 
office in Escondido, three work at that location, three would come from 
the North Coast office (19 miles away), one would come from the Ramona 
office (20 miles away), and two would come from the Orange County office 
(49 miles away).
    The Petitioner objected to the Employer's proposal, arguing that 
employees should not be required to travel such distances to vote. The 
Petitioner noted that there was no justification for requiring employees 
to vote at the Century Park facility--which it said is the headquarters 
of the Employer's Labor Relations and Human Resources departments--
because none of the unit employees work at that location. The Petitioner 
also objected to the ``perceived advantage'' it claimed the Employer 
would gain by providing employees with transportation to the polling 
sites.
    After hearing from both parties, the Acting Regional Director 
rejected the Employer's two-site manual election proposal as well as an 
eight-site traveling election, which no party preferred, and decided to 
conduct the election by mail ballot.\3\ Citing Section 11336 of the NLRB 
Casehandling Manual, which states that the use of mail ballots should be 
explored where long distances are involved or where eligible voters are 
scattered, the Acting Director noted that both of those factors are 
present in this case. A mail ballot election, he stated, could be 
accomplished with a minimal expenditure of Agency resources and no 
employee would be expected to travel away from his work station to a 
central polling site. In contrast, under the Employer's two-site manual 
election proposal, 17 of the 20 eligible employees would have to travel 
to vote in the election--one of them more than 120 miles round trip. The 
Acting Director also noted that none of the employees work at the 
Century Park location, where the Employer was proposing that 11 
employees be required to vote, and that the Employer had not responded 
to the Region's request that it propose an appropriate logistical 
sequence for a manual election. He estimated that the other 
alternative--conducting polling at all eight locations where the 
employees work--would require 8 hours of a Board agent's time, including 
4 hours to travel to each of the sites.
---------------------------------------------------------------------------
    \3\The Regional Director first advised the parties that he had 
decided to conduct the election by mail in a letter dated December 18, 
1997. Thereafter, the Employer submitted a request for reconsideration 
of the decision, to which the Petitioner responded. The Regional 
Director then reaffirmed his decision in a letter dated December 24, 
1997. The reasons for his decision, which we review here, are set forth 
in those letters.
---------------------------------------------------------------------------

                             II. DISCUSSION

    ``Congress has entrusted the Board with a wide degree of discretion 
in establishing the procedure and safeguards necessary to insure the 
fair and free choice of bargaining representatives by employees.'' NLRB 
v. A.J. Tower Co., 329 U.S. 324, 330 (1946). The Board in turn has 
delegated to the Regional Directors discretion in determining the 
arrangements for an election, including the location of the election and 
whether it should be conducted by manual balloting or mail ballot. 
Halliburton Services, 265 NLRB 1154 (1982); National Van Lines, 120 NLRB 
1343, 1346 (1958).\4\ As the Board stated in National Van Lines:
---------------------------------------------------------------------------
    \4\Contrary to the suggestion of our dissenting colleagues, the 
Board employs an abuse of discretion standard in determining whether to 
overturn the decision of a Regional Director as to whether an election 
should be conducted manually or by mail. E.g., Shepard Convention 
Services, 314 NLRB 689, 690 (1994), enf. denied on other grounds, 85 
F.3d 671 (D.C. Cir. 1996); London's Farm Dairy, 323 NLRB No. 186 (June 
20, 1997). Thus, whichever party challenges the Regional Director's 
decision on the manner of conducting the election must show that the 
Regional Director has abused his or her discretion. The abuse of 
discretion issue encompasses whether the Regional Director acted within 
the guidelines that we have outlined in directing a mail ballot 
election.

        [C]ircumstances surrounding working conditions in various 
        industries require an adaptation of established election 
        standards to those peculiar conditions. Because of these 
        circumstances, the Board has invested Regional Directors with 
        broad discretion in determining the method by which elections 
        shall be conducted. Only where it is affirmatively shown that a 
        Regional Director has clearly abused the discretion afforded him 
        to conduct representative [sic] elections will the Board nullify 
---------------------------------------------------------------------------
        an election and prescribe other election standards.

A Regional Director's discretion, however, is not unfettered and is to 
be exercised within certain guidelines. Because of the value of having a 
Board agent present at the election, the Board's long-standing policy, 
to which we adhere, has been that representation elections should as a 
general rule be conducted manually, either at the workplace or at some 
other appropriate location. The Board has also recognized, however, that 
there are instances where the Regional Director, because of 
circumstances that would tend to make it difficult for eligible 
employees to vote in a manual election, may reasonably conclude that 
conducting the election by mail ballot, or a combination of mail and 
manual ballots, would enhance the opportunities for all to vote.
    Agency procedures for the conduct of representation elections, 
including guidelines for use by the Regional Director in determining 
when a mail ballot election is appropriate, are set forth generally in 
Part Two of the NLRB Casehandling Manual.\5\ This volume of the Manual 
has not, however, been revised since 1989, and therefore does not 
reflect decisions of the Board issued since that date. This has resulted 
in some confusion as to when it is appropriate to use mail ballots. We 
therefore take this occasion to set forth the following guidelines 
clarifying the circumstances under which it is within the Regional 
Director's discretion to direct the use of mail ballots. \6\
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    \5\The Casehandling Manual is prepared by the General Counsel for 
the purpose of providing guidance to Agency employees involved in the 
handling of cases arising under the Act. As to matters on which the 
Board has issued rulings, the drafters of the Manual of course seek to 
accurately reflect Board law. However, the Manual ``is not intended to 
be a compendium of either substantive or procedural law, nor can it be a 
substitute for a knowledge of the law.'' Casehanding Manual, Part Two, 
Purpose of Manual. Moreover, the guidelines in the Manual ``are not 
Board rulings or directives'' and ``are not intended to be and should 
not be viewed as binding procedural rules.'' Id., quoted in VIP Health 
Care Services v. NLRB, 82 F.3d 1122, 1126 (D.C. Cir. 1996). See also, 
e.g., Queen Kapiolani Hotel, 316 NLRB 655 fn. 5 (1995); NLRB v. Black 
Bull Carting, Inc., 29 F.3d 44 (2d Cir. 1994); Modern Plastics Corp. v. 
McCulloch, 400 F.2d 14 (6th Cir. 1968). Thus, while the Casehandling 
Manual can be regarded as generally reflecting Board policies, in the 
event of conflict it is the Board's decisional law, not the Manual, that 
is controlling.
    \6\The Manual should be revised to reflect these guidelines, which 
reflect a more flexible standard than has sometimes been inferred from 
the sentence in Sec. 11336 of the current version stating that the use 
of mail ballots should be limited to circumstances that indicate the 
``infeasibility'' of a manual election. The Board has never construed 
the ``infeasibility'' standard so narrowly as to mean that mail ballots 
may be used only if a manual election is incapable of being 
accomplished. Rather, as the Board's decisions in this area reflect, and 
as the Manual provision read as a whole indicates, the use of mail 
ballots has been considered appropriate in circumstances where a manual 
election might be possible, but would be impractical, or not easily 
done. Because, however, the use of the term has clearly contributed to 
confusion in this area, it should be deleted when the Manual is revised.
---------------------------------------------------------------------------
    When deciding whether to conduct a mail ballot election or a mixed 
manual-mail ballot election, the Regional Director should take into 
consideration at least the following situations that normally suggest 
the propriety of using mail ballots: (1) where eligible voters are 
``scattered'' because of their job duties over a wide geographic area; 
(2) where eligible voters are ``scattered'' in the sense that their work 
schedules vary significantly, so that they are not present at a common 
location at common times;\7\ and (3) where there is a strike, a lockout 
or picketing in progress. If any of the foregoing situations exist, the 
Regional Director, in the exercise of discretion, should also consider 
the desires of all the parties, the likely ability of voters to read and 
understand mail ballots, the availability of addresses for employees, 
and finally, what constitutes the efficient use of Board resources, 
because efficient and economic use of Board agents is reasonably a 
concern.\8\ We also recognize that there may be other relevant factors 
that the Regional Director may consider in making this decision, but we 
emphasize that, in the absence of extraordinary circumstances, we will 
normally expect the Regional Director to exercise his or her discretion 
within the guidelines set forth above.
---------------------------------------------------------------------------
    \7\Thus, employees may be deemed to be ``scattered'' where they work 
in different geographic areas, work in the same areas but travel on the 
road, work different shifts, or work combinations of full-time and part-
time schedules. The ``scattered'' criteria are intended to apply in any 
situation where all employees cannot be present at the same place at the 
same time. See, e.g., London's Farm Dairy, Inc., 323 NLRB No. 186 (June 
20, 1997); and Reynolds Wheels International, 323 NLRB No. 187 (June 20, 
1997).
    The mere fact that employees may work multiple shifts, thereby 
necessitating more than one voting session during the course of the 
workday, is not in and of itself a sufficient basis for directing a mail 
ballot election. However, as noted below, the Regional Director may 
appropriately take into account considerations of economy and efficient 
use of agency resources where other factors are present that suggest the 
propriety of using mail ballots. Thus, for example, where the holding of 
a manual election at times and places convenient for eligible voters 
would require that voting sessions be conducted at multiple locations 
and/or over a period of several days, the Regional Director, in 
exercising his discretion as to whether to use mail ballots, may 
consider such factors as the burden imposed on Board resources where 
there is a substantial distance between the workplace and the Regional, 
Subregional, or Resident Office responsible for conducting the election.
    \8\This factor is only to be considered if one or more of the other 
factors we have outlined above are present. Accordingly, Regional 
Directors should not order mail ballot elections based solely on 
budgetary concerns. See Willamette Industries, 322 NLRB 856 (1997).
---------------------------------------------------------------------------
    In the strike, lockout, or picketing situation, for example, the 
Regional Director may, in his or her discretion, order either a mail 
ballot or a mixed manual-mail ballot election in order to insure that 
eligible voters are not required to cross a picket line in order to 
vote,\9\ or because striking and locked-out workers have left the area 
or taken other temporary employment that makes it difficult for them to 
get to the election site to cast a manual ballot. Similarly, where a 
significant number of eligible voters are not scheduled to be at the 
election site at the times proposed for manual balloting--for such 
reasons as that they work part-time or on an on-call basis, or have 
duties that keep them in the field for substantial periods of time--the 
Regional Director might reasonably conclude that their opportunity to 
participate in the election would be maximized by utilizing mail or 
mixed manual-mail ballots.\10\
---------------------------------------------------------------------------
    \9\In such a situation, as long as striking employees have not left 
the area or taken other employment that would interfere with their 
ability to participate in a manual election, we agree with our 
dissenting colleagues that holding the election at a neutral site would 
also be appropriate.
    \10\Our dissenting colleagues suggest that it would be possible to 
hold manual elections in some situations where employees work multiple 
shifts, as well as in some strike or lockout situations. We do not 
disagree. However, we reject our dissenting colleagues' apparent premise 
that a mail ballot election should not be held where it would be 
possible to conduct the election manually. A Regional Director should, 
and does, have discretion, utilizing the criteria we have outlined, to 
determine if a mail ballot election would be both more efficient and 
likely to enhance the opportunities for the maximum number of employees 
to vote.
---------------------------------------------------------------------------
    Contrary to our dissenting colleagues, we do not agree that the 
holding of mail ballot elections in circumstances that fall within these 
guidelines will inevitably result in more instances of voter coercion, 
because a Board agent is not present while the vote is being cast. In 
fact, mail ballots have been utilized by the Board since the NLRA was 
enacted--and in recent years in about 2 percent of all elections--and 
abuses have rarely occurred. Indeed, as the Board has previously noted, 
there has been only one reported case involving such an abuse in the 
history of the Act, and in elections conducted under the Railway Labor 
Act, which are routinely conducted by mail ballot, there have been only 
three reported cases involving improprieties. See London's Farm Dairy, 
supra, slip op. at 2, and cases cited therein.
    Neither do we agree that the statistics regarding turnout at Board-
conducted elections cited by the dissent demonstrate that using mail 
ballots rather than manual ballots reduces voter participation in 
elections. The Board's experience with representation elections has 
shown that the voter participation rate is generally higher in elections 
conducted manually than in mail ballot elections. However, because mail 
ballot elections have, by design, largely been limited to situations 
where factors were present which were likely to inhibit voter 
participation if the election were conducted manually, there is no 
reason to believe that participation in those particular elections would 
necessarily have been higher had they been manual elections. See VIP 
Health Care Services v. NLRB, supra at 1126 (expressing doubt whether 
qualified voters who did not exert the minimal effort required to fill 
in and return a mail ballot would have been more likely to vote in a 
manual election where to do so would have required them to make a 
special trip to the election site during off duty hours).
    Finally, we reject the dissent's contention that because, under the 
rule in Peerless Plywood Co., 107 NLRB 427 (1953), employers are 
prohibited from giving mass ``captive audience'' speeches to employees 
during the period beginning 24 hours before the actual balloting period 
begins, the use of mail ballots ``significantly silences'' the employer. 
We note that during the Peerless Plywood period, the employer and its 
agents remain free to continue to campaign against the union not only 
through mailings to employees at their homes, but also in the workplace, 
where they can distribute and post literature, communicate with 
employees one-on-one, and even continue to conduct mass meetings, as 
long as the meetings are on the employees' own time and attendance is 
not mandatory. Livingston Shirt Corp., 106 NLRB 400, 408 (1953).
    Like our concurring colleague, we know of no reason to believe that 
employees are less likely to cast fully reasoned votes in mail ballot 
elections than in manual elections, or that employees will be 
insufficiently aware of the importance of the choice they are making 
absent what the dissenters describe as ``the symbolism and the drama 
which accompanies a manual ballot.'' Consequently, if pursuant to the 
guidelines described above, a Regional Director concludes that it is 
appropriate to conduct all or part of the election by mail, we believe 
that the Board should defer to that decision.
    In directing a mail ballot election in this case, the Acting 
Regional Director relied on the fact that the unit employees are 
scattered over a large geographic area, and that adopting the Employer's 
proposal would have required employees to travel long distances from 
their work stations in order to vote. We therefore find that he acted 
within the scope of his discretion, whether under the Casehandling 
Manual provisions as they are presently worded or under the guidelines 
we have set forth above. Section 11336 of the Manual explicitly states 
that ``[p]articularly . . . where eligible voters are scattered because 
of their duties, the possibility [of mail balloting] should be 
explored.'' Thus, as the Court of Appeals for the District of Columbia 
Circuit has noted, the Manual specifically instructs Regional Directors 
in cases such as this to explore the possibility of mail balloting and 
to exercise their discretion in determining whether such an election is 
appropriate. VIP Health Care Services v. NLRB, supra at 1126, 1127. On 
these facts the case also falls within the first of the three 
circumstances we describe above as ordinarily suggesting the propriety 
of using mail ballots. We therefore conclude that the Acting Regional 
Director has acted within the discretion which he has been afforded to 
determine the method of conducting the election, and thus we affirm his 
decision to hold the election by mail ballot.

                                  ORDER

    IT IS ORDERED that the case is remanded to the Acting Regional 
Director for Region 21, with directions to open and count the ballots in 
the mail ballot election, and to take further appropriate action.
  Dated, Washington, D.C.   July 21, 1998

            ____________________________________
             Sarah M. Fox,               Member

            ____________________________________
             Wilma B. Liebman,           Member

(seal)      National Labor Relations Board

Chairman Gould, concurring.
    I agree with my colleagues' decision to affirm the Acting Regional 
Director's decision to hold the election in this case by mail ballot. I 
join in their decision to abandon the ``infeasibility'' standard set 
forth in the Casehandling Manual, and provide guidelines in keeping with 
the Board's decisions in this area. Thus, I agree that a mail ballot is 
appropriate in those circumstances cited by my colleagues, namely, where 
eligible voters are scattered because of their job duties over a wide 
geographic area; where eligible voters' work schedules vary such that 
they are not present at a common location at common times; and where 
there is a strike, a lockout, or picketing in progress.
    Unlike my colleagues, however, I would not limit the use of a mail 
ballot to only these circumstances. I would find the use of mail ballots 
appropriate in all situations where the prevailing conditions are such 
that they are necessary to conserve Agency resources and/or enfranchise 
employees. My colleagues in the majority state that Regional Directors 
should not direct mail ballot elections based solely on budgetary 
concerns. For the reasons set forth below, I hold a different view. As 
discussed below, I also reject the dissent's contentions that an 
increased use of mail ballots will diminish the integrity of Board 
elections, decrease employee participation or effectively silence the 
employer's voice in the election campaign.
    In its recent decisions, the Board has encouraged greater use of 
postal ballots with the overriding objective of expanding franchise so 
that employees who ordinarily have limited or no opportunity to cast a 
ballot in a manual election will be able to participate in the election 
process. Beginning with Lone Star Northwest, Inc., 36-RD-1434 
(unpublished), the Board has directed mail ballot elections in 
situations that did not justify a mail ballot election under the 
language of the current representation case manual. See also London's 
Farm Dairy, 323 NLRB No. 186 (June 20, 1997), and Reynolds Wheels 
International, 323 NLRB No. 187 (June 20, 1997). In Lone Star, the Board 
granted the union's request for review of a Regional Director's decision 
not to order a mail or mixed manual-mail ballot for economic strikers 
and striker replacements. Even though the Board's Casehandling Manual 
did not provide for a mail ballot under these circumstances, the Board 
concluded only a mail ballot would enfranchise the voters who were on 
strike.
    As I have previously observed, the provisions of the Board's 
Casehandling Manual do not constitute ``a form of authority binding . . 
. on the Board.'' See National Labor Relations Board Casehandling 
Manual, Purpose of Manual; London's Farm Dairy, 323 NLRB No. 186, slip 
op. at fn. 3. See also Shepard Convention Services, 314 NLRB 689 (1994), 
enf. denied 85 F.3d 671 (D.C. Cir. 1996). Further, as noted by the 
majority, although the Manual states that ``the use of mail balloting, 
at least in situations where any party is not agreeable to the use of 
mail ballots should be limited to those circumstances that clearly 
indicate the infeasibility of a manual election,'' the Board has never 
held or construed the Casehandling Manual so narrowly as to require mail 
ballots only in situations where it would be impossible to conduct a 
manual ballot election. Since the provisions of the Casehandling Manual 
cannot supercede or substitute for the provisions of the Act, for formal 
decisional precedent, or for the Board's Rules and Regulations, I agree 
with my colleagues that the ``infeasibility'' standard relied on by the 
dissent should be abandoned.
    The use of mail ballots in appropriate circumstances will not only 
expand employee franchise beyond what would be provided in a manual 
election in the same circumstances,\1\ but it will conserve Agency 
resources in the new period of austerity which we confront. In London's 
Farm Dairy, 323 NLRB No. 186, slip op. at 2, fn.3 (June 20, 1997), and 
in my concurring opinion in Williamette Industries, 322 NLRB 856 (1997), 
I emphasized the importance of ``an unduly burdensome strain'' on Agency 
resources as a factor to be taken into account by a Regional Director in 
ordering a mail ballot election. Although my colleagues in the majority 
concede that a Regional Director should consider ``what constitutes the 
efficient use of Board resources, because efficient and economic use of 
Board agents is reasonably a concern,'' they also find that it cannot be 
the sole factor in the decision. I do not understand what so 
differentiates budgetary concerns from other factors that it leads my 
colleagues to conclude that budgetary concerns standing alone cannot in 
any circumstance justify the direction of a mail ballot election. 
Indeed, in this time of austerity and scarce Agency resources, it is 
imperative, as the General Counsel stated in his directive, that 
Regional Directors conserve budget resources wherever and whenever 
possible in the exercise of their discretion to establish the mechanics 
of the election process. See Office of the General Counsel Field 
Memorandum OM 98-7, issued January 30, 1998.
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    \1\As the Board pointed out in London's Farm Dairy, 323 NLRB No. 
186, slip op. at 2, fn. 2 (June 20, 1997), mail ballots are the rule and 
not the exception under the Railway Labor Act. Indeed, the National 
Mediation Board (NMB) has conducted all ballots by mail for more than a 
decade! The instances of illegal behavior are rare, as is true under our 
Act.
---------------------------------------------------------------------------
    The dissent suggests that voter turnout is always lower in mail 
ballot elections. However, mail ballots are generally ordered where it 
is difficult to obtain voter participation with a mail or manual ballot, 
thus rendering meaningless a direct or raw comparison between voter 
participation under mail and manual ballots.\2\ I find similarly 
unpersuasive my dissenting colleagues' contention that coercion is 
inevitable in the mail balloting procedure. As the Board noted in 
London's Farm Dairy, in the appropriate circumstances, eligible voters 
have been permitted to cast their ballots by mail since the earliest 
days of the Act and, in that time, there has been only one reported 
instance of abuse. 323 NLRB No. 186, slip op. at 1-2 (citing Human 
Development Assn., 314 NLRB 821 (1994)).
---------------------------------------------------------------------------
    \2\The participation data for mail ballots cited by the dissent 
reflects those cases where the employees are difficult to reach. The 
bulk of the postal ballot cases will continue to fall in this category, 
notwithstanding the fact that some of them will turn exclusively or 
primarily on budgetary considerations.
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    The dissent also seems to suggest that unless employees cast their 
ballots under the supervision of a Board agent, the integrity of the 
election process will be lost. Again I disagree. The Board rejected a 
similar assertion in London's Farm Dairy, noting that the instructions 
that accompany the ballot specifically instructs the employee to mark 
the ballots in secret and directs the employee not to show the ballot to 
anyone after it is marked. 323 NLRB No. 186, slip op. at 2. Further, as 
the Board's own experience in conducting manual elections clearly 
demonstrates, the presence of a Board agent does not guarantee 
``laboratory conditions.'' See e.g., Modern Hard Chrome Service Co., 187 
NLRB 82 (1970) (election set aside where a single vote was determinative 
of the election and the conversations of the petitioner's observer, 
already criticized by the Board agent, ``culminated in his gratuitous 
offer of a loan to a prospective voter.''); International Stamping Co., 
97 NLRB 921 (1951) (election set aside where during the election, the 
employer's observer went through the plant with an eligibility list 
calling out the names of prospective voters and checking off each 
voter's name as he left to vote); and Austill Waxed Paper Co., 169 NLRB 
1109 (1968) (election set aside where ballot box left unattended when an 
altercation developed outside the polling place during the voting period 
and drew the officials away).
    The Board's purpose in regulating the conduct of elections is to 
insure that employees cast an uncoerced and well-considered vote. Yet, 
there is nothing to suggest that employees do not cast a fully reasoned 
vote in a mail ballot election. My dissenting colleagues invoke the 
``symbolism and drama which accompanies a manual ballot.'' In my view, 
symbolism is present in the mail ballot election by virtue of the 
language of the ballot and the instructions sent by the Regional Office. 
Further, the symbolism of a manual election does not enjoy any 
particular advantage over that in a mail ballot election. Indeed, it has 
one disadvantage in that it permits employers to attempt to manipulate 
the symbolism and drama of an in-plant election in order to gain 
advantage in the election. Thus, based on my experience as a 
practitioner and an academic in the field of labor law since 1961, and 
on my many conversations with management attorneys, I note that some 
employers attempt to direct the Board agent and the procedures 
surrounding the election in a way that creates the appearance in the 
eyes of the employees that their employer controls not only their salary 
and benefits but also the Board's procedures.\3\
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    \3\The fact that employers resort to this strategy suggests both 
that it is effective and that it is not always redressed by the 
objection procedure.
    The dissent contends that I am relying on nonrecord ``facts.'' 
Congress, however, has entrusted the Board with the ``special function 
of applying the general provisions of the Act to the complexities of 
industrial life.'' NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 
(1963). And it is precisely because the Board, as Justice Frankfurter 
aptly stated, is ``equipped with its specialized knowledge and 
cumulative experience'' that the Board's determinations are accorded 
deference by the Courts. San Diego Bldg. Trades v. Garmon, 359 U.S. 236, 
242 (1959). In the instant case, all I have done is to apply my 
cumulative experience in the field of labor-management relations.
    The attempt by employers to present a particular image of Board 
procedures to employees, which is designed to influence their voting 
behavior, is well demonstrated by the following commentary:
       The NLRB had designated twenty-six polling places throughout the 
       Ohio Appalachians and Kentucky, and some of the nine board agents 
       were afraid to drive their government cars along the winding, icy 
       roads of those isolated mountain territories. Their concerns left 
       us an entree to make a pass at the NLRB. We told the agents that 
       we would gladly drive them to the polling sites--many of which 
       were out at the pits--in company four-wheel-drive wagons. When 
       the union activists heard about our plan, they were outraged and 
       demanded that a union election observer be allowed to ride 
       alongside the polling agent. We, of course, refused, threatened 
       to take back our offer if union people were ordered along. The 
       NLRB denied the union demand. So on election morning, several 
       polling agents boarded Cravat [the employer] trucks and headed 
       for the polling sites in the company of a Cravat driver. That was 
       one more victory for us: in a union-busting campaign, the 
       relentless accumulation of small victories leads to the final big 
       win. By the time the balloting was underway, I had no doubt that 
       the election was ours.
M.J. Levitt, Confessions of a Union Buster, at 31 (New York: Crown 
Publishers, Inc., 1993).
    In citing this commentary, I do not suggest in any way that my 
dissenting colleagues are motivated by a desire to engage in or assist 
``union busting.'' The book, however, highlights techniques by which the 
Board's manual ballot procedures have been manipulated by sophisticated 
employers and labor consultants in ways that mail ballots cannot be 
manipulated. The dissent's reliance upon the employer's communication 
avenues in connection with manual and mail ballots makes the Union 
Buster commentary relevant. In any event, as I have stated, my primary 
reliance is upon my own expertise buttressed by numerous conversations 
with labor lawyers representing management.
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    Noting a limitation on the use of the ``captive audience speech'' 
technique during a mail ballot election, the dissent states that ``a 
mail ballot significantly silences one of the campaign voices [i.e., the 
employer] during an essential part of the campaign.'' This assertion is 
completely without basis inasmuch as it assumes that the employer's only 
method of communication is or should be the captive audience. As the 
majority notes, an employer is free to conduct ``captive audience'' 
speeches throughout the campaign period until the Peerless Plywood\4\ 
rule takes effect 24 hours before the ballots are mailed\5\ and, during 
the actual balloting period, the employer is free to lawfully campaign 
in the workplace. By decrying the unavailability of the ``captive 
audience'' speech, my dissenting colleagues appear to both exalt this 
right of communication at the time most propitious to the employer over 
all avenues of communication protected by the Act, and also suggest that 
unions have the advantage over employers in communicating with employees 
concerning their views of representation.\6\ Neither view is soundly 
conceived in terms of the reality of the workplace and the principles of 
the Act. Through its exclusive control of company time and property,\7\ 
an employer enjoys virtually complete access to the minds of its 
employees during working hours. As the Court made clear in Lechmere v. 
NLRB,\8\ employers are not required to permit nonemployee union 
organizers to enter their property to communicate with employees. The 
employer also wields considerable economic power over its employees who 
depend completely on their jobs as their means of livelihood and 
economic existence. As a result of this economic power, an employer's 
statement is imbued with a ``force independent of persuasion.''\9\ The 
union, on the other hand, can only attempt to convince employees that, 
if selected as their collective-bargaining representative, it will 
obtain an agreement from the employer that improves wages, benefits, and 
working conditions.
---------------------------------------------------------------------------
    \4\107 NLRB 427 (1953). Member Brame questions the validity of the 
Peerless rule. See the dissent at slip op. 11, fn. 11. I agree with 
Board precedent that the Peerless rule is properly applied to employers, 
but I disagree with its application to unions. In my view the 
interference with a free election condemned in Peerless results from the 
combined effect of the last minute character of the speech and the 
employer's economic power over its employees and exclusive control of 
the workplace. I would not apply the Peerless rule to a union's last 
minute campaign speech since the union neither wields the employer's 
economic power nor possesses the employer's access to employees.
    \5\The concerns expressed by the dissent as they relate to 
communication opportunities appear to find their basis in this 
fundamental difference between mail and manual ballots. In a manual 
ballot election, employers can hold captive audience speeches at a time 
more proximate to the actual casting of the ballot by the voter. Cf. 
Confessions of a Union Buster, supra at 108:
       In an NLRB election, we might have felt somewhat secure. Our plan 
       would have been to keep the warmth and love in focus until the 
       last ballot was counted, then collect our check and walk away. 
       But a Railway Labor Act election is done differently, and it 
       wasn't going to be easy. Under the railway act, a union election 
       is conducted by mail. Voters have two weeks to mark their ballots 
       and return them to the National Mediation Board.
    \6\The dissent argues that this ``mail ballot case'' is not the 
appropriate forum for discussing the issue of the relative ability of 
the parties to communicate with voters. However, it is my dissenting 
colleagues who rely on what they perceive as an infringement of the 
employer's ability to communicate with employees as a basis to object to 
the increased use of mail ballot elections.
    \7\Although Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), 
allows workplace solicitation by employees, the nonemployee union 
organizer is for the most part forced to campaign outside company 
property.
    \8\502 U.S. 527 (1992)
    \9\NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941). See also 
NLRB v. Falk Corp., 102 F.2d 383, 389 (7th Cir. 1939) (``The position of 
the employer . . . carries such weight and influence that his words may 
be coercive when they should not be so if the relation of master and 
servant did not exist.'').
---------------------------------------------------------------------------
    The dissent also notes that, during the critical period prior to an 
election, the Board permits unions but not employers to visit individual 
employees at their homes to present views on unionization.\10\ The 
Board, however, applies this rule in both manual and mail ballot 
elections based on the recognition that
---------------------------------------------------------------------------
    \10\See Peoria Plastic Co, 117 NLRB 545, 547-548 (1957), and Orleans 
Mfg. Co., 120 NLRB 630 (1958).

        there is a substantial difference between the employment of the 
        technique of individual interviews by employers on the one hand 
        and by unions on the other. Unlike employers, unions often do 
        not have the opportunity to address employees in assembled or 
        informal groups, and never have the position of control over 
        tenure of employment and working conditions which imparts the 
        coercive effect to systematic individual interviews conducted by 
        employers. Thus, not only do unions have more need to seek out 
        individual employees to present their views, but, more 
        important, lack the relationship with the employees to interfere 
        with their choice of representatives thereby. Plant City Welding 
        & Tank Co., 119 NLRB 131, 133-134 (1957), rev'd on other 
---------------------------------------------------------------------------
        grounds, 133 NLRB 1092 (1961).

    In my view, for the reasons set forth above, a properly conducted 
mail ballot election is in many if not all instances the equal of a 
manual ballot for achieving the Board's statutory goal of ensuring 
employees the opportunity to cast their ballots for or against 
representation under circumstances free not only from interference, 
restraint, or coercion violative of the Act, but also from other 
elements that prevent or impede a free and reasoned choice.\11\ 
Accordingly, I affirm the Regional Director's decision to direct a mail 
ballot election in the instant case.
---------------------------------------------------------------------------
    \11\Excelsior Underwear Inc., 156 NLRB 1236, 1240 (1966).
---------------------------------------------------------------------------
  Dated, Washington, D.C.   July 21, 1998

            ____________________________________
             William B. Gould IV,         Chairman

           National Labor Relations Board

Members Hurtgen and Brame, dissenting.

                             1. INTRODUCTION

    The Board today continues on a path toward greater utilization of 
mail balloting. This process began in Shepard Convention Services, 314 
NLRB 688 (1994). Although the Board's direction of a mail ballot 
election in that case was reversed by the D.C. Circuit,\1\ the Board, 
undaunted, continued on that path in London's Farm Dairy, 323 NLRB No. 
186 (June 20, 1997), and Reynolds Wheels, 323 NLRB No. 187 (June 20, 
1997). The misdirection continues today.
---------------------------------------------------------------------------
    \1\Shepard Convention Services v. NLRB, 85 F.3d 671 (D.C. Cir. 
1996).
---------------------------------------------------------------------------
    We believe that this direction is contrary to the finest traditions 
of the Board, and is fraught with peril. We therefore dissent.
    The Board's policy is set forth in the National Labor Relations 
Board's Casehandling Manual:

        The best place to hold an election, from the standpoint of 
        accessibility to voters, is somewhere on the employer's 
        premises. In the absence of good cause to the contrary, the 
        election should be held there.

    In addition, Section 11336 provides in relevant part:

        [T]he use of mail balloting, at least in situations where any 
        party is not agreeable to the use of mail ballots, should be 
        limited to those circumstances that clearly indicate the 
        infeasibility of a manual election.

                        2. POLICY CONSIDERATIONS

    Although the Manual provisions do not have the binding force of law, 
they nonetheless reflect the Board's historical wisdom of favoring 
manual elections.\2\ That wisdom has its roots in the fundamental 
purpose of the Act--to provide for workplace democracy in which 
employees can select or reject a union as bargaining representative. At 
bottom, our difference with our colleagues is that we believe that 
manual elections, as compared to mail ballot elections, are far more 
likely to achieve that goal. We would therefore generally restrict mail 
ballot elections to those limited situations mentioned in the Manual.
---------------------------------------------------------------------------
    \2\The court's reversal of the Board in Shepard was based upon the 
Board's departure from the Manual.
---------------------------------------------------------------------------
    In view of our difference with our colleagues we believe that it is 
important that we emphasize the essential role that Manual elections 
play in the realization of employees' Section 7 rights. These rights are 
anchored in the opportunity to vote on a collective-bargaining 
representative, which, in turn, depends upon the following factors: (1) 
Communicating to the voters the importance of the choice they are about 
to make (2) secrecy of the ballot; (3) integrity of the voting process; 
(4) an absence of coercion on the voter; (5) maximum participation by 
the electorate; and (6) full opportunity for the voter to hear all 
points of view. In our view, manual balloting, as compared to mail 
balloting, is far more likely to achieve these essential elements of 
elections.
    Nothing emphasizes the importance of the voter's choice more than 
the symbolism and the drama which accompanies a manual ballot. Employees 
are first alerted to their forthcoming choice when presented with 
authorization cards. The drama begins with the preelection hearing and 
formal announcement by conspicuously posted election notices. 
Electioneering intensifies until the day before the election. The next 
day the Board agent appears, surveys the facility, marks off the no-
campaign areas, and instructs the observers. Usually with great 
solemnity and visibility, the agent seals the ballot box, opens the 
polls and superintends the campaign free area. Everything points to the 
solemnity and importance of the employee's choice, and more than any 
words, this process says to the employee, ``This is important--so 
important that the United States Government has sent its agent to 
protect your right to vote in a free and unfettered election.''
    As to secrecy of the ballot, the voter in a manual election stands 
in the privacy of the voting booth. No one can see how he or she votes. 
In a mail ballot, the marking of the ballot can occur at any place, 
public or private, and it can occur in the presence of another person or 
indeed scores of other persons.
    With respect to the integrity of the ballot, the Board agent, in a 
manual election, monitors closely the entire balloting procedure. The 
agent is on site to guard against improprieties and to observe and 
report any that occur. With a mail ballot, there is no such guardian. As 
the Board has said: ``Mail ballot elections are more vulnerable to the 
destruction of laboratory conditions than are manual elections because 
of the absence of direct Board supervision over employees' voting.'' 
Thompson Roofing, Inc., 291 NLRB 743 at fn. 1 (1988).
    Historically, the Board and its agents have fulfilled this role in 
an exemplary fashion. The manual election is the one area where all 
sides (management, unions and employees) traditionally set aside their 
differences and uniformly praise the manner in which Board agents 
perform their responsibilities. Conversely, if the election is conducted 
outside the presence of a Board agent, the solemnity of the process is 
lost as ballots are intermixed with junk mail, and the diffusion of 
balloting over time at multiple locations jeopardizes the integrity of 
the election process. In short, the manual election is the Board's 
``crown jewel,'' and we would not abandon it unless there is a showing 
that such an election is infeasible.
    With respect to coercion, the Board agent will not permit any such 
coercion to occur during the balloting process. By contrast, such 
coercion can easily occur in a mail ballot situation. An employer or 
union agent can stand over the employee and even inspect his ballot to 
make sure that the vote is ``right.'' An ``election party'' where mail 
ballots actually are marked can be held in which there is peer pressure 
to vote the ``right'' way. Votes can be bought, with money or promises, 
and the purchaser can make sure that he or she gets what was paid for. 
These are just a few examples of potential abuse.\3\ Even in situations 
where there is no employer or union misconduct, an election can be so 
highly charged that an employee should be free to vote his or her 
preference in a booth, free from the oversight and pressures that can 
exist even in an employee's home.
---------------------------------------------------------------------------
    \3\It is no answer to say there have been few occurrences of these 
abuses. There have been few instances precisely because, until recently, 
there have been few instances of mail balloting.
---------------------------------------------------------------------------
    With respect to maximum participation, the figures speak for 
themselves. A recent study showed that 87.9 percent of eligible 
employees participated in manual elections, and 68.14 percent 
participated in mail ballot elections, a difference of almost 20 
percent.\4\
---------------------------------------------------------------------------
    \4\Memorandum from NLRB General Counsel Fred Feinstein to NLRB 
Chairman William B. Gould IV, dated June 2, 1994.
    In Shepard, the participation rate was a mere 18 percent, with the 
result that a union was elected with less than 10 percent of those 
eligible to vote.
---------------------------------------------------------------------------
    With respect to the factor of full opportunity to hear all points of 
view, we note that, under Peerless Plywood, 107 NLRB 427 (1953), the 
employer is essentially barred from having group meetings with employees 
during the 24-hour period before the balloting. While this rule may make 
good sense prior to a manual election, the application of that rule to a 
mail ballot election makes no sense. The mail ballot election occurs 
over a period of several weeks, and thus the Peerless Plywood rule 
applies to the entire period beginning 24 hours before the ballots are 
mailed by the Regional Director and ending with the return of the 
ballots.\5\ Thus, a mail ballot significantly silences one of the 
campaign voices during an essential part of the campaign.\6\ That 
approach is inconsistent with the goal of a truly informed electorate.
---------------------------------------------------------------------------
    \5\Oregon Washington Telephone Co., 123 NLRB 339 (1959).
    \6\Moreover, a union can visit employees at home; the employer 
cannot do so.
---------------------------------------------------------------------------

                           3. THE INSTANT CASE

    In the instant case, a manual election is not infeasible. For 
example, a Board agent from the San Diego office could travel to all 
eight sites and back to San Diego. According to the Acting Regional 
Director, even after adding time for voting, the entire task (traveling 
and election) would take about 8 hours. Clearly, this is not an 
``infeasible situation.'' A Board agent, in a single day, can accomplish 
the entire task.
    The Acting Regional Director concluded that a mail ballot was 
warranted on the basis that the employees were ``scattered because of 
their duties,'' citing a portion of the Manual, Section 11336. We 
disagree. Unlike employees whose work causes them to roam over large 
distances (e.g., truckdrivers), the employees here work at fixed sites. 
The case is not different from any case involving a multi-site unit. In 
any event, the sites are not separated by large geographical distances; 
the sites are only 80 miles apart. Further, even if the employees are 
``scattered,'' within the meaning of the Manual provision, that same 
provision goes on to state that, in such circumstances, ``the 
possibility [of a mail ballot] should be explored.'' And, most 
significantly, the Manual thereafter explicitly provides that a mail 
ballot should be conducted only if all parties consent, unless a manual 
ballot would be infeasible. As shown above, that is not the case here.

                         4. RESPONSE TO MAJORITY

    In support of their view, our colleagues rely on Halliburton 
Services, 265 NLRB 1154 (1982), and National Van Lines, 120 NLRB 1343 
(1958). The cases are inapposite. In Halliburton, the issue was the time 
and place of a manual election. In National Van Lines, the issue was 
whether the particular mail ballot procedures devised by the Regional 
Director were appropriate. By contrast, the issue in the instant case is 
manual balloting as opposed to mail balloting. That matter is subject to 
Board policy and practice, as articulated in the Manual.
    Our colleagues point to three situations that, in their view, 
``normally suggest the propriety of using mail ballots.'' We will 
address those situations below. However, before doing so, we believe 
that, irrespective of the criteria used, the burden of proof is on the 
party who seeks to depart from the norm, i.e., from the preferred route 
of a manual election.
    Our colleagues say that the Regional Director has discretion, and 
that the burden of proof is on the appealing party to show an abuse of 
discretion. We disagree. Concededly, the Regional Director has some 
discretion in deciding whether to hold a mail ballot election. However, 
as our colleagues recognize, that discretion ``is to be exercised within 
certain guidelines.'' In sum, if the Regional Director is acting within 
those guidelines, he has discretion to order a mail or manual ballot, 
and the appealing party must show an abuse of discretion. But, as to the 
issue of whether the Regional Director has acted within the guidelines, 
we believe that the burden of proof is on the party who wishes to depart 
from the norm of a manual ballot.
    With respect to the first ``situation,'' we would agree that a mail 
ballot is generally appropriate where eligible voters are ``scattered,'' 
(i.e., are at many locations) over a wide geographic area because of 
their job duties.
    The second ``situation'' deals with employees who are ``scattered in 
the sense that their work schedules vary significantly.'' As to these 
employees, our colleagues say that their mail-ballot criteria would 
apply ``in any situation where all employees cannot be present at the 
same place at the same time.'' We disagree. Thus, for example, a Board 
agent can conduct the election in two phases corresponding to two 
shifts. And, this would be true, even if the shifts extend to a second 
day. Further, even if the election site is geographically removed from 
the Regional Office, a Board agent can make one trip, and can attend to 
other Board business during election ``down'' times. Similarly, where 
employees report to a central facility and then go on the road, the 
election can be held at the times when they report to the central 
facility.\7\
---------------------------------------------------------------------------
    \7\Concededly, if the employees are always on the road, or report at 
widely varying times, a mail ballot may be necessary.
---------------------------------------------------------------------------
    As to the third ``situation'' we do not agree that a mail ballot is 
necessitated by a strike, lockout, or picketing. For example, where the 
strikers all live in the same small community, they can reasonably come 
to a neutral polling place.\8\
---------------------------------------------------------------------------
    \8\If a significant number of strikers have left the geographic 
area, a mail ballot may be necessary. Similarly, if a significant number 
of strikers have interim jobs which preclude their coming to a manual 
election, a mail ballot may be necessary for them.
---------------------------------------------------------------------------
    We recognize that it may be cheaper to hold a mail ballot, as 
opposed to a manual one, in some of the situations described above. 
However, for the reasons discussed in this opinion, we think that the 
extra expenditure, if any, is money that is well spent for the 
attainment of our statutory goal, viz., insuring the integrity of a free 
and secret ballot election with maximum participation.
    We acknowledge that we must be prudent in the expenditure of scarce 
public resources. At bottom, the issue is one of establishing priorities 
among competing demands on the funds available to the Agency. In our 
view, the obligation to insure integrity in the conduct of elections is 
perhaps the most important obligation of the Board. The Board has 
achieved an excellent record in this regard. This is due, in no small 
part, to the integrity that is ensured by the presence of a Board agent 
at a manual election. We think that it would be ``penny-wise and pound-
foolish'' to risk this enviable record in an effort to achieve some 
savings.\9\
---------------------------------------------------------------------------
    \9\Of course, there may be instances where the costs are so 
prohibitive, or the drain on staff-power so substantial, that a mail 
ballot election is the only practical alternative. In this footnote, and 
in the prior two footnotes, we recognize that mail ballots are sometimes 
appropriate, even where a manual ballot is theoretically possible. Thus, 
the majority has mischaracterized our position.
---------------------------------------------------------------------------
    Finally, our colleagues' application of their criteria to the 
instant case causes us concern about the criteria themselves. Our 
colleagues say that the employees here are ``scattered over a large 
geographic area, that employees would have to travel long distances in 
order to vote, and that a manual election would require a substantial 
expenditure of Agency resources.'' None of this is true. As noted above, 
a single Board agent can travel from the Board office in San Diego to 
all eight election sites. The entire endeavor would involve 8 hours. In 
sum, the unit employees will not have to travel at all; the election 
will come to them. And the cost of one Board agent for one day is money 
well spent to insure industrial democracy.

                    5. RESPONSE TO CONCURRING OPINION

    Chairman Gould's concurrence argues that the Casehandling Manual has 
been superceded by Shepard and subsequent Board decisions. However, as 
noted above, the Board's decision in Shepard was reversed by the circuit 
court because it departed from the Manual. The Chairman's subsequent 
opinions then rely on the overturned Board decision in Shepard. In these 
circumstances, we would not rely on Shepard and the subsequent cases to 
say that the Manual has been superceded. More accurately, it has been 
ignored.
    The concurring opinion suggests that ``some employers'' seek to 
direct the Board agent at a manual election, so as to make it appear 
that the employer controls the Board's election procedures. Assuming 
arguendo that some employers may seek to do this to achieve a tactical 
advantage through the Board's procedures, we have confidence in the 
ability of the Board agents to control the situation. Further, to the 
extent that the employers succeed in this stratagem, the objection 
procedure is always available to redress the situation.\10\ Thus, 
significantly, in manual ballot elections the presence of a Board agent 
and the parties' observers acts as a deterrent to objectionable conduct 
and, to the extent that objectionable conduct may occur in the polling 
and adjacent areas, evidence of such conduct is readily available 
through the observers. In contrast, in a mail ballot election, coercion 
of employees, particularly if it is successful, is far less likely to 
become known to the parties and obtaining evidence in support of 
objectionable conduct is far more difficult.
---------------------------------------------------------------------------
    \10\In his concurring opinion, Chairman Gould says that this 
strategy is effective and is not always redressed by the objection 
procedure. These ``facts,'' in turn, are based on the Chairman's ``many 
conversations with management attorneys.'' We would not rely on these 
nonrecord conversations, and thus we cannot find, on this record, the 
fact that he has found. Nor would we rely on the anecdotal hearsay 
``evidence'' recited in a book called Confessions of a Union Buster. In 
our view, major changes in Board policy (e.g. altering the historic role 
of manual ballots) should not be based on such a slender reed. In 
addition, as the Chairman concedes, our position in favor of mail 
balloting is not based on favoring one side or the other. We simply wish 
to assure that Board elections are conducted in such a way as to best 
protect the Section 7 right to vote freely.
---------------------------------------------------------------------------
    The concurring opinion further says that we ``suggest that unions 
have the advantage over employers in communicating with employees 
concerning their views of representation.'' The concurrence then goes on 
to contend that this is not so. We do not consider this ``mail ballot'' 
case to be the appropriate forum in which to debate which party, if any, 
has a communication advantage. Our sole point is that a mail ballot does 
not simply change the method of voting; rather, by extending the 
Peerless Plywood period, a mail ballot imposes a significant limitation 
on one party's acknowledgeably effective means of communicating with the 
employees.\11\
---------------------------------------------------------------------------
    \11\Member Brame believes that, given the continued erosion of the 
once even-handed Peerless Plywood rule, the time has come to reexamine 
Peerless' premises in light of current empirical data and to reassess 
its restrictions on employer free speech in light of First Amendment 
jurisprudence.
---------------------------------------------------------------------------
    Finally, the concurrence notes our data (supra) which show that 
employee participation rates are higher in manual elections than in mail 
ballot elections. The concurrence contends that the data can be 
disregarded because mail ballots are used in circumstances where it is 
inherently difficult to obtain voter participation. He apparently 
believes that, absent a mail ballot in these cases, the participation 
rate would have been even lower. However, he cites no data for his 
thesis. In addition, under his view, a mail ballot can be held solely 
for budgetary reasons, i.e., when there is no problem of voter 
participation. We would not sacrifice employee participation for the 
sole purpose of saving money.

                              6. CONCLUSION

    The manual election lies at the heart of our system of workplace 
democracy. It is the cornerstone of this Agency's contribution to the 
successful workings of that democracy. Because of this, the Agency's 
historic practice has been to hold manual elections, except in rare 
circumstances where such elections are not feasible. Those circumstances 
were not present in Shepard, and they are not present here. Therefore, 
in deference to our values and our traditions, we would hold a manual 
election here.
  Dated, Washington, D.C.   July 21, 1998

            ____________________________________
             Peter J. Hurtgen,              Member

            ____________________________________
             J. Robert Brame III,           Member

           National Labor Relations Board

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