Petition for Review and Cross-Application For Enforcement of an Order of the National Labor Relations Board.
Pell, Bauer and Timbers,*fn* Circuit Judges.
This might be referred to as the "Smiling Face" ballot case. Much as in the nursery rhyme that "for lack of a nail a kingdom was lost", here the insertion of a "smiling face" on one of 105 ballots in a union representation election, together with another signed ballot, have cast in doubt the validity of the entire election.
The National Labor Relations Board ("Board") applies pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976) ("Act"), for enforcement of its bargaining order, 258 N.L.R.B. 287 (1981), issued on September 25, 1981 against Sioux Products, Inc. ("Company"). The Company petitions to review that order. For the reasons stated below, we deny enforcement and remand the case to the Board for further proceedings in accordance with this opinion.
The dispute arises from a representation election held on February 1, 1980 at the Company's Addison, Illinois, facility where plastic injection molding parts are made. Of the 105 ballots cast, 52 unchallenged ballots were cast for Local 707 of the National Production Workers Union ("Union"), 44 unchallenged ballots were cast against the Union, 7 ballots were unopened due to challenges by the Union on the basis of voter eligibility, and 2 ballots which had been marked with an "X" in the "No" square subsequently were ruled void by the Regional Director because of extraneous markings on the ballots.
The first of the latter two was invalidated by the Board agents who conducted the election because the voter had signed her name on the ballot; the other was invalidated, over the Company's protest, by the Regional Director because an employee had sketched a smiling face under the "X" in the "No" box (See Exhibit A appended to this opinion). Since invalidation of the 2 ballots left the Union with a majority of valid ballots cast, the Regional Director did not rule on the 7 challenged ballots. Under the Board's challenge procedure, ballots are cast but not counted pending future determination of their validity. The Regional Director, however, did order a hearing on the Company's objection that Board agent misconduct skewed the election results. After two days of hearings, the Hearing Officer recommended overruling the objection and sustaining the election result. The Board adopted the Hearing Officer's recommendation.
After the Board certified the Union as the bargaining representative of the Company's production and maintenance employees at its Addison facility, the Company refused to bargain with the Union. The Company refused to bargain on the ground of the alleged impropriety of the certification. It asserted, in its answer to the General Counsel's complaint and it contends on this review, that the election should be set aside due to the misconduct of Board agents before, during, and after the election. Second, it asserted, and continues to do so on this review, that the Board erred in invalidating the two disputed ballots with the extraneous markings. Since the validity of either one of the ballots might leave the Union short of a majority if the other 7 challenged votes were counted and were votes against the Union, the Company argues that the other 7 ballots must be tallied on remand.
We hold that substantial evidence in the record supports the Board's determination that Board agents' misconduct did not tarnish the election.*fn1 We further hold, however, that the Board improperly invalidated one of the disputed ballots. Accordingly, we remand the case to the Board for a determination of whether the 7 challenged ballots should be tallied.
Turning first to the issue of alleged Board agent misconduct, the Company asserts that the Board agents who supervised the election, particularly agents Paula Goodgal and Craig Wilson, manifested such a bias in favor of the Union that the "laboratory" conditions of the election were spoiled. Specifically, the Company asserts that Goodgal showed unwarranted hostility towards Company observer Brent Borgerson and those employees who attempted to contact him during the election, that Goodgal grossly mishandled an Italian-speaking employee's attempt to vote, that both Board agents impermissibly aided Union observer Julia Arroyo in challenging allegedly ineligible voters, and that they unfairly conducted the ballot counting procedure at the conclusion of the election. The Company filed timely objections to the Board agents' conduct. A hearing was held in June 1980 before a Hearing Officer from a different regional office.*fn2
Although a party moving to set aside a certified election because of Board agent misconduct must sustain a heavy burden of proof, NLRB v. Fenway Cambridge Motor Hotel, 601 F.2d 33, 36-37 (1st Cir. 1979), the principles governing Board agent conduct demand strict impartiality. As the Board itself has stated:
"The Board in conducting representation elections must maintain and protect the integrity and neutrality of its procedures. The commission of an act by a Board agent conducting an election which tends to destroy confidence in the Board's election process, or which could reasonably be interpreted as impugning the election ...