Hudson Aviation Services, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1988

288 N.L.R.B. 870 (N.L.R.B. 1988)

870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hudson Aviation Services, Inc. and Teamsters Local
#25, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL—CIO,' Petitioner. Case 1—
RC-18880
April 29, 1988
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held June 4, 1987, and the hearing officer's
report recommending disposition of them. The
election was conducted pursuant to a Stipulated
Election Agreement.- The tally of ballots shows 26
for and 5 against the Petitioner, with 5 challenged
ballots, an insufficient number to affect the results.
The Board has reviewed the record in light of
the exceptions and briefs, has adopted the hearing
officer's findings 2 and recommendations, 3 and finds
that the election must be set aside and a new elec-
tion held.
We adopt the hearing officer's recommendation
that the election be set aside based on certain con-
duct of the Board agent for the reasons set forth in
the attached hearing officer's report.
As more fully detailed by the hearing officer,
during the first polling session the Board agent was
summoned to the dispatcher's office, an enclosed
office near the polling area, by the Employer's as-
sistant manager and its dispatcher/supervisor, who
sought to obtain her consent to post a sign outside
the front entrance of the Employer's facility to
notify the replacement dispatcher not to enter the
polling area. Upon entering the dispatcher's office,
where four employees who had voted were also
present, the Board agent, at first, cautiously sought
to investigate whether the assistant manager was a
supervisor and subject to what the Board agent
perceived to be a preelection agreement barring
' On November 2, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 The Employer has excepted to some of the hearing officer's credibil-
ity findings. The Board's established policy is not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings.
In adopting the hearing officer's findings, we do not rely on the state-
ments made by the Board agent prior to the second polling session in set-
tmg aside the election.
3 In the absence of exceptions, we adopt pro forma the heanng offi-
cer's recommendations to overrule the Employer's objections with re-
spect to Agent Cole's direction that the dispatch office door remain
closed during the election, the allegation of Board solicitation of voters,
and Agent Cole's direction to Agent Rothman not to discuss her lunch
plans with the Employer's manager.
more than one supervisor from being present in the
dispatcher's office at any given time during the
election. 4 The Board agent, however, became frus-
trated and began to raise her voice when the assist-
ant manager either failed to answer or, as the
Board agent perceived it, evaded her questions,
and the conversation almost immediately escalated
into a loud argument during which the Board
agent threatened to stop the election if the assistant
manager remained in the dispatcher's office. The
hearing officer concluded, and we agree, that the
Board agent's conduct communicated the impres-
sion that the Board was displeased with and was
criticizing the Employer's assistant manager and,
thereby, undermined the indispensable perception
of Board neutrality in the election.5
Finally, in light of the hearing officer's findings
of fact, the dissent's statement that the argument
between the Board agent and the Employer's assist-
ant manager was "precipitated by the improper
presence of [the Employer's] supervisors within 12
' feet of the polling area during the election" simply
does not reflect the factual record here. Thus, even
under the Board agent's own perception of the
preelection agreement, the election was to be con-
ducted in an area near the enclosed dispatcher's
office where at least one supervisor was to be
present during the election. In any event, as the
hearing officer concluded, even if the Board agent
had correctly relied on a preelection agreement to
achieve her) goal of removing the assistant manager
from the dispatcher's office, her conduct neverthe-
less would warrant setting aside the election. Con-
trary to the dissent's implication, the issue before us
is not whether the Employer engaged in objection-
able conduct but, rather, whether the actions of the
Board agent reasonably could be interpreted as im-
pugning the election standards we seek to maintain.
For the reasons set forth by the hearing officer,
and by us here, we conclude from the totality of
the circumstances that the Board agent's conduct
here impermissibly put into question the Board's
4 The hearing officer found that although the Board agent perceived
that such a preelection agreement had been reached, there was no meet-
ing of the minds by the parties on such an agreement.
5 Contrary to his colleagues, Member Babson additionally agrees with
the hearing officer's conclusion that the Board agent's remark prior to
the reopening of the polls for the second polling session also was objec-
tionable. Thus, within 10 minutes of the reopening of the polls, the Peti-
tioner's representative stated to the Employer's manager that if the dis-
patcher left the dispatcher's office, the Board agent would know what to
do, to which the Board agent responded, "Yes I do" Considering this
remark together with the earlier incident, Member Babson agrees with
the hearing officer that the Board agent's remark further suggested that
the Board's neutrality in the election was in issue
288 NLRB No. 94
HUDSON AVIATION SERVICES 871
neutrality in the election and, therefore, the elec-
tion must be set aside.6
[Direction of Second Election omitted from pub-
lication.]
MEMBER JOHANSEN, dissenting.
According to the hearing officer's report, the
election was conducted in the breakroom of the
Employer's facility, which is reached primarily via
a hallway. On this hallway, "within twelve feet of
the breakroom entrance," is the dispatcher's office.
It is undisputed that the parties agreed at a preelec-
tion conference that the dispatcher's door would
remain closed throughout the polling period. Su-
pervisor Diane Limoli was to be inside dispensing
paychecks and driver's assignments.
The first shift of the election ran from 12 to 3
p.m. Potential voters were required to wait in the
hallway, not in the polling area, while waiting to
vote. At 12:30 p.m., the Employer's assistant man-
ager, Arico, also entered the dispatcher's office
where there were four employees who had already
voted. Later, Arico signaled for the Board agent.
The Board agent then proceeded to the dispatch-
er's office. When the Board agent began investigat-
ing Arico's supervisory status, a confrontation oc-
curred. From these facts, the majority concludes
that the Board agent's conduct "undermined the in-
dispensable perception of the Board's neutrality in
the election," and sets aside the election.
In reaching this conclusion, my colleagues adopt
the hearing officer's reliance on Glacier Packing
Co., 210 NLRB 571 (1974). Such reliance is mis-
placed. In Glacier Packing, the Board agent told
6 We furthei agree with the hearing officer's reliance on Athbm Engi-
neering Corp., 166 NLRB 966 (1967), and Glacier Packing Co., 210, NLRB
571 (1974). As noted by the hearing officer, the Board in Athbro aban-
doned a standard of assessing only whether Board agent conduct affected
the votes of employees. Thus, the Board there set aside the election be-
cause the Board agent's conduct in fraternizing with a representative of
one of the parties between voting sessions tended to destroy confielence
in the Board's election process or reasonably could have been interpreted
as impugning the standards of integrity and neutrality which the Board
seeks to maintain in elections. Significantly, the Board set aside the elec-
tion where the Board agent's conduct was observed only by one employ-
ee who had already voted and who, in turn, had reported the incident to
the employer, and notwithstanding the fact that the Board agent's con-
duct did not affect the votes of employees.
Furthermore, we find unpersuasive the dissent's attempt to distinguish
the present case from Glacier. As the dissent points out, the Board there
found that the Board agent's remarks and conduct in removing a "Vote
Neither" button from the employer's observer and in attempting to pro-
hibit an employer's official from distributing campaign hterature reason-
ably could have been interpreted by the employees who were present, at
least some of whom had not yet voted, as indicating that the Board was
opposed to the employer's position in the election. But, as the Board's
discussion in Athbro and Glacier make clear, the Board's concern in main-
taining its election standards is not limited to the particular circumstances
presented in Glacier. Finally, and in any event, the dissent's reliance on
the fact that in Glacier the Board agent's conduct occurred in the pres-
ence of employees who may not have yet voted is unavailing, since, as
found by the hearing officer here, two employees were informed of the
incident involving the Board agent in the dispatcher's office prior to the
time they voted.
the employer's observers in the voting area that
they "weren't supposed to be wearing that [small
cards pinned to their lapels which read 'Vote NEI-
THER']." Then "[h]e just pulled it off," without
asking permission Secondly, Glacier Packing's di-
rector of personnel was standing about 200 feet
from the building whe,re the election was being
conducted and was distributing literature to em-
ployees. The Board agent told him "in a loud voice
in the presence of some 15 or 20 employees who
actually ended up being [the Board agent's] cheer-
ing section. . . . Get out of here. Stop this. You
have no business and no right to be here handing
out anything." The director of personnel told the
Board agent that "he was not talking to any dog.
He was talking to a human being." The employees
who observed the discussion clapped, laughed, and
made catcalls while pointing their fingers at the di-
rector of personnel. The director of personnel then
walked approximately 200 feet away from where
he was initially standing and the Board agent re-
mained with him
In setting aside that election, the Board held that
employees witnessing the two incidents in-
volved could reasonably have interpreted [the
Board agent's] remarks and actions as indica-
tive that the Board was opposed to the Em-
ployer's position in the election. . . . [T]he elec-
tion was one in which the Employer had cam-
paigned vigorously against the participating
labor organizations and [the Board concluded
that] the manner in which the Board agent
conducted himself in the presence of employ-
ees who had not yet voted may have had a sub-
stantial impact on the results of the election.
[Emphasis added.]
The critical conduct in Glacier Packing was direct-
ly focused at 'the employer's position in the election
(as evidenced through the campaign buttons being
worn and the literature being distributed) and took
place in front of employees who had not yet voted.
Neither factor is present here. Accordingly, I dis-
agree with my colleagues' disposition of this case.
Further, with the benefits of hindsight, it appears
that the Board agent should have tempered her
conduct in policing the polling area and adjacent
hallways. However, in these circumstances, I
would overrule the Employer's objections based on
her conduct, finding rather that the Employer
cannot benefit from an argument with the Board
agent which was precipitated by the improper pres-
ence of its supervisor within 12 feet of the polling
area during the election.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
HEARING OFFICERS REPORT AND
RECOMMENDATIONS ON OBJECTIONS
BACKGROUND3
The election was conducted at the employer's prem-
ises in the employee break area on two shifts; the first
from noon to 3:00 p.m. and the second from 5:15 p.m. to
5:45 p.m. The break room is primarily reached via a hall-
way that leads directly to it from the main entrance. The
dispatcher's office is located on this hallway within
twelve feet of the break room entrance. It is undisputed
that the parties agreed at a pre-election conference that
contrary to normal practice, the dispatcher's door would
remain closed throughout the polling periods. In addi-
tion, the employer agreed to post a sign on the dispatch-
er's door stating that a supervisor was inside. This super-
visor was Diane Limoli. The election was conducted on
a Thursday which was a payday. Paychecks are dis-
pensed from dispatcher's office. Drivers without regular
daily routes receive their assignments in the dispatchers
office.
THE INCIDENT IN THE DISPATCHER'S
OFFICE
During the first polling period, at about 12:30 p.m.,
Arico, the assistant manager entered the dispatcher's
office. Limoli, the dispatcher/supervisor was present in
her office with employees David Brown, Kenneth Col-
lins, Jose Grenadas and Therese Sloan. All four of these
employees had already cast their ballots.
Limoli and Arico decided that the dispatcher who
would replace Limoli at 2:30 p.m., William Hoff, might
be unaware of a pre-election agreement and might enter
the polling area, adjacent to which are located the man-
ager's and assistant manager's offices. 4 As a result, they
prepared a sign to post outside the front entrance of the
employer's facility. However, before posting the sign,
they decided to obtain the consent of a Board agent. To
this end, Arico opened the dispatcher's door and signaled -
Board agent Howard Diener. Diener notified Board
Agent Cole who went to Limoli's office where a discus-
sion ensued.
According to Arico and Limoli, Cole slammed the
door as she entered the dispatcher's office and in a raised
voice which became progressively louder demanded to
know who Arico was and what her position was with
the employer. )Despite Arico's repeated efforts to re-
spond to Cole's questions, Cole repeatedly cut Arico off.
She told Arico accusatorily that a pre-election agreement
provided only for Limoli's presence in the dispatcher's
office and that if she did not leave the office, Cole would
stop the election. 5 By this point, Cole and Arico were
3 The Employer by Murray testified in a conclusory fashion that the
Employer engaged in a vigorous campaign against the Petitioner and In-
tervenor. Since their was no factual or documentary support for this con-
clusion, I make no fmding regarding the intensity of the campaign effort.
4 The parties pre-election agreement provided that both the assistant
manager and manager would vacate their offices during the voting shifts
5 Petitioner witness Grenadas confirms the fact that Cole repeatedly
told Arico she did not belong in the dispatch office and notified her she
both speaking loudly with Cole's the louder of the two
voices. 6 One of the employees who was present, David
Brown became agitated at Cole's conduct and told Arico
that Cole was "fucking rude" and Arico did not have to
"answer any of her fucking questions." 7 At this point
Limoli jumped up from her seat and said "Jesus Christ."
According to Limoli, the intensity of the exchange be-
tween Cole and Arico made her fear a physical alterca-
tion might develop between them.
At About the time of Brown's remark, Arico offered
to leave, but Cole would not allow her to leave until she
had checked the hallway to see if any voters were wait-
ing outside. 8 This further upset Arico. Cole told her at
this point that "I'm here with the NLRB and here to see
this is a fair election." Two minutes later, Cole allowed
Arico to leave the office. Shortly thereafter, Cole re-
turned to the room, apologized to Limoli for the incident
that had occurred and asked her to extend her apologies
to Arico. Union witness Grenadas corroborates that Cole
apologized and stated she was just doing her job.
According to Cole, she spoke in a deep professional
voice and never raised her volume, notwithstanding the
fact that Arico raised her voice. Cole testified that her
conversation with Arico began in the hallway in the
presence of a voter nearby. The Board Agent was con-
cerned with the effect Arico's presence in the hallway
would have on the voter. She was also motivated by her
opinion that Arico's presence in the dispatch office vio-
lated a pre-election agreement which allowed only one
supervisor to be present therein.
Cole asked Arico if she was a supervisor. Arico said
she did not have to respond to Cole. Cole then asked
Arico to step inside the dispatcher's office which she
did. 8 Cole told Arico she had to know if she was a su-
pervisor, because Limoli was the only supervisor al-
lowed in the area. Arico told Cole that she was not
acting as a supervisor that day and refused to answer
Cole when she sought to investigate whether she was
"normally a supervisor." In fact, Arico turned to the em-
ployees, pointed at Cole and said, "You see, is this what
you want here? You want to have these people coming
on the premises here?" 1 ° In response, Cole said that she
was not with the union or the company, but with the
government. She then suggested that the problem could
be solved if the employees left the room which proved
impractical, because it was raining. Thereafter, Arico
had to leave No employee witness testified that the Board Agent threat-
ened to stop the election.
6 One wall of the dispatchers office shares a common wall with the
break room where the election was being conducted. Murray testified
without contradiction that this common wall is very thin and that he has
on several occasions her sound transmitted from the dispatcher's office
into the break room.
7 Grenadas agreed that Brown encouraged Arico not to cooperate
with Cole. He went on to state in his affidavit which I credit that Cole
directed Brown to "stay out of it"
8 Cole testified that she required potential voters to wait in the hall-
way, not in the polling area while they waited to vote.
9 Union witness Grenadas testified that Cole knocked at the dispatch-
er's door, entered and then began to question Arico.
10 Neither Petitioner employee witness Grenadas nor the Region's em-
ployee witness Collins nor Employer employee witness Sloan testified to
hearing Arico make this statement
HUDSON AVIATION SERVICES, 873
'
volunteered to leave the room. Cole permitted this after
checking that no employees were lined up to vote in the
hallway. Cole could not recall any remarks made by the
four employees, except one employee's observation that
it was raining. She denied threatening to stop the elec-
tion.11
According to Cole, she returned to the dispatcher's
office after she received a call from Limoli. Limoli tried
to explain to Cole that Arico was assistant manager, but
that on that day, she was driving a bus. Cole said she
had understood Arico, but she was a supervisor and su-
pervisors are not allowed in the voting area." She asked
Limoli to tell Arico that she was sorry to upset her, but
those are the rules.
I am convinced that Board Agent Cole's intent in her
first visit to the dispatch office was to maintain laborato-
ry conditions and preserve the integrity of the election
process. She also intended to purge any objectionable
conduct in which the Employer may have been engaged
such as surveillance or electioneering by supervisors in
the vicinity of the polling area. n3
Unfortunately, Cole, in the presence of four unit em-
ployees, became enmeshed in a conversation with assist-
ant manager Arico which almost immediately escalated
into an argument during which both women spoke
loudly."
At first, Cole cautiously sought to investigate whether
Arico was a supervisor and subject to what Cole per-
ceived to be a pre-election agreement barring more than
one supervisor at any given time from being present in
the dispatch office. I find that there was no meeting of
the minds among the parties to such an agreement."
Cole became frustrated and began to raise her voice
when Arica either failed to answer or as Cole perceived
evaded her questions. Cole decided that based upon the
facts available to her, Cole decided that Arico did not
belong in the dispatch office as per the pre-election
agreement.
My observation of Cole's testimony persuades me that
she genuinely believed that she did not threaten to stop
the election if Arico remained in the dispatch office. I
nonetheless credit the testimony of Limoli and Arico
that she did make such a threat. I conclude that Cole
was so clearly convinced that Arico's presence violated
a pre-election agreement and constituted objectionable
conduct that she made this threat to persuade Arico to
leave the dispatch office.
11 Cole failed to take notes of this or any other election incident. She
denied on cross-examination any knowledge of the case handling manual
requirement, Section 11326 that such events occurring in the course of an
election should be recorded
12 Cole never explained why she considered the dispatch office part of
the polling area. She also never explained why if Anco had remained in
the dispatch office with the door closed, it would have potentially inter-
fered with the election
13 Electric Hose & Rubber Co, 262 NLRB 186 (1982), Bally Park Place,
Inc. 265 NLRB 703 (1982)
14 I do not credit Grenadas' testimony that Cole never raised her
voice. The substantial weight of other employee witnesses' testimony and
the dictates of logic convince me that Arico was not the only one to
raise her voice during this incident.
15 This was readily apparent in the conversation which occurred be-
tween Cole and employer manager Murray prior to the opening of the
reopening of the polls at 5.15 p.m. See infra.
I credit Cole's undisputed testimony that Arico made a
derogatory statement about Cole to employees which
served to inflame an already delicate situation. I find that
such statement encouraged employee David Brown's ac-
tions of accusing the Board Agent of rudeness towards
Arico and urging Arico not to cooperate with the Board
Agent. This obviously prompted Cole's attempt to ex-
clude Brown from the conversation and Cole's explana-
tion that she represented only the National Labor Rela-
tions Board and was attempting to insure that there was
a fair election. She reiterated this position by ultimately
explaining to Arico when Arico decided to depart that
she wanted to check that the hallway was free of voters
before she allowed Arico to leave. Notwithstanding
these efforts to assure the four employees as to her neu-
trality, employee Therese Sloan clearly was left with an
impression that the Board Agent was hostile to the Em-
ployer and Sloan communicated this fact to one employ-
ee, Kerry, who had not yet voted.16
THE DISPATCH OFFICE DOOR
Limoli testified without contradiction that she sought
to keep the door to her office shut at all times during the
election in accordance with a pre-election agreement.
Each time an employee entered the office, she notified
them to close the door. She was not always successful in
getting employee cooperation. About four times after the
incident in her office between Arico and the Board
Agent, Cole returned and in a sharp tone of voice direct-
ed that the door be closed. One such employee was Ed
Friend. Before he voted, he was taken aback when he
was the subject of one of these remarks from Cole. At
that point Limoli explained to Friend Cole's earlier inci-
dent with Arico in the dispatch room. No other employ-
ees testified to such an experience and Cole could not re-
member any such incidents.
SOLICITING VOTERS
Respondent presented hearsay testimony through
Limoli to the effect that employee Blanche Catana told
her that the Board Agent had required her to vote
before she could visit the dispatch office. Board Agent
Cole testified that she assigned Board Agent Diener to
the entrance of the break room where he followed her
direction to ask voters as they appeared in the en-
tranceway, "Are you here to vote?" If the employee an-
swered affirmatively, Diener told them "Step right up or
this is the area, this is the place." I credit Cole's version
of Diener's conduct. There was no credible testimony
that the Board Agent encouraged anyone to vote or con-
ditioned their receipt of their paychecks on voting.
VOTING HIATUS
The first polling session closed at 3:00 p.m. As the
three Board agents were preparing to leave the break
15 I find that Sloan did not on the date of the election clearly notify
employee Ed Friend of what had occurred in the dispatch office. How-
ever, it is clear from his testimony that before he voted, Limoli notified
him that the Board agent and Anco had a heated argument half an hour
earlier. See infra.
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
room, one of them, Beryl Rothman, asked Ed Murray,
the Employer's manager to suggest a place to eat. As he
began to answer, Cole cut him off by sternly telling
Rothman that she knew a place to eat. Murray testified
to seeing at least one bargaining unit employee in the
break room during this exchange. Murray could not
identify the voter and was not aware if the employee had
voted or subsequently voted. Cole could not recall if an
employee was present. The Employer contends that this
remark humiliated Murray in front of a voter. I conclude
that it is quite clear that Cole's remarks were directed
solely to agent Rothman and that any employee present
would have so evaluated them.
The second polling session commenced at 5:15 p.m.
Employees were lined up outside the break room with
the door open. Employee Frank Caprio was at the head
of the line. Within ten minutes of the polls reopening,
Cole asked Murray that the new dispatcher, William
Hoff, be directed to stay in his office throughout the
thirty (30) minute session as per their pre-election agree-
ment. Murray denied such an agreement existed and re-
fused to agree to this condition. According to Cole, she
said, "that's your choice." and the conversation ended.
According to Murray, the Petitioner's representative
stated that if the dispatcher left the office, the agent
would know what to do. Cole responded, "Yes I do."
and the conversation ended. The Petitioner failed to
present their agent Reardon or their observer Flynn who
witnessed the conversation. Cole failed to specifically
deny such an exchange occurred. In view of the earlier
incident in the dispatch office, I conclude that it is logi-
cal that such statements were made by Reardon and
Cole. Therefore, I credit Murray's version.
CONCLUSION
First, I recommend that the Employer's objection re-
garding the Board Agent's direction to dispatcher Limoli
and employees to keep the dispatch office closed be dis-
missed. The Board Agent was acting consistent with an
agreement to keep the door closed which Limoli herself
was attempting to police. Furthermore, given the close
proximity of the door to the voting area, it was impor-
tant to keep that door closed so potential voters would
not have the impression that they were being kept under
surveillance by Limoli.
Second I recommend that the Employer's objection al-
leging Board solicitation of voters be overruled. There is
no credible evidence that the Board Agent did more
than give neutral assistance to voters who already in-
tended to vote.
Third, I recommend that the Employer's objection re-
garding Board Agent Cole's implicit direction to Board
Agent Rothman not to discuss her lunch plans with the
employer's manager was not objectionable. I find that
her remarks were not intended to disparage the manager.
Rather, I find that Cole was acting cautiously to protect
the agents against being the subject of an objection by
the Petitioner or Intervenor. Such an objection challeng-
ing the Board's neutrality was reasonably foreseeable and
not without precedent. Athbro Precision Engineering
Corp., 166 NLRB 966 (1968), vacated 67 LRRM 2361
(D.C. Cir. 1968), acquiesced in 171 NLRB 21 (1968),
enfd. 423 F.2d 573 (1st Cit. 1970).
Fourth, I turn to the incident in the dispatch office in-
volving the Board Agent and the Employer's assistant
manager. This conduct must be evaluated by judging the
degree of impact the conduct had on the bargaining unit
and how the conduct affected the integrity of the elec-
tion process and the Board's neutrality. Athbro. The
credible evidence shows that two out of thirty-eight (38)
voters learned of the incident before they voted. The Pe-
titioner received 26 votes. Even if these two voters were
presumed to have voted for the Petitioner and their
votes are substracted, the Union still received a majority
of valid votes cast and would deserve to be certified as
the collective bargaining representative of unit employ-
ees.
In Athbro, the Board abandoned the pure impact stand-
ard in evaluating objections which alleged Board Agent
misconduct. That election was set aside even though the
misconduct was not communicated to a single employee.
The central issue in alleged Board Agent misconduct
cases is whether the agent's conduct undermined the in-
tegrity of the election process and/or the indispensible
perception of Board neutrality. It is self-evident that the
perception of Board neutrality and the integrity of the
election process must be preserved.
In this case, the Board Agent's conduct in the dis-
patcher's office communicated the perception that the
Board was displeased with the Employer's assistant man-
ager. It is undeniable that Cole communicated the im-
pression that the Board considered that the Employer
was guilty of breaking its word. The Board agent then
placed the assistant manager in the highly embarrassing
position of having to leave the dispatch office or being
responsible for the cancellation of the election. The as-
sistant manager credibly testified that she felt humiliated
by the entire incident. The reactions of employees
Brown and Sloan confirm this perception. I conclude
even if the Board Agent had correctly relied on a pre-
election agreement to achieve her goal of removing the
assistant manager that the impact on the election would
have been the same. It is reasonable to conclude that the
totality of the Board Agent's conduct communicated a
criticism of the Employer and thereby encouraged voters
to believe that the Board was encouraging them to vote
against the Employer's position in the election. I am not
convinced that the Board agent dissipated the cloud that
had been created over the question of the Board's neu-
trality by her statements which sought to assure voters
that her only goal was to assure a fair election. For that
reason, I do not agree with Petitioner's assertion that this
case is controlled by Fenway Cambridge Motor Hotel, 237
NLRB 1540 (1978), enfd. 601 F.2d 33 (1st Cir. 1979).
Rather I find controlling, the Board's decision in Gla-
cier Packing Co., Inc., 210 NLRB 571, 573 (1974):
Board Agents in conducting themselves in behalf of
the Board must endeavor to maintain and protect
the integrity and neutrality of its procedures. There-
fore, while taking all practicable measures to imple-
ment the prohibition against electioneering at or
near the polls, they must take care that their actions
HUDSON AVIATION SERVICES
do not tend to foster in the minds of the voters the
impression that the Board is not neutral with regard
to the choices on the ballot. For the Board's role in
conducting elections must not be open to question.
Thus, actions by a Board Agent conducting an elec-
tion, which could reasonably be interpreted as im-
pugning the election standards we seek to maintain,
are sufficient grounds for setting aside the election.
In Glacier, the Board Agent's conduct occurred in the
presence of at most 20 employees who had not yet voted
in an election in which 476 votes were cast. In this case
2 out of 38 voters, a higher percentage of voters than in
Glacier were aware of the Board Agent's conduct before
they voted. In both cases the Employer campaigned
against union representation. See also Brinks Armored
875
Car, Inc., 278 NLRB 141 (1986). Accordingly, I recom-
mend that this objection be sustained.
Finally, I recommend that the Board Agent's remarks
prior to the reopening of the poll be found objectionable,
because they further suggest that the Board's neutrality
is in issue and that the agent might further impugn the
Employer or stop the election if her conditions were not
met.
SUMMARY AND RECOMMENDATIONS
Based upon the foregoing findings of fact and conclu-
sions of law I have recommended that the Employer's
objections be overruled in part, and sustained in part.
Accordingly, it is further recommended that the Board
election conducted on June 4, 1987 be set aside and a
second election held.