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NLRB - National Labor Relations Board |
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.
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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.
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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.
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\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.
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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:
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\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
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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.
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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.
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\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).
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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\
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\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.
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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.
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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)).
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\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.
---------------------------------------------------------------------------
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
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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