court sustained an order where extensive conversations took place
How later courts described this case
- court sustained an order where extensive conversations took place
Written by the judges who cited it.
The opinion
CHOY, Circuit Judge,
dissenting:
I respectfully dissent.
I believe that the “laboratory conditions” required in representative elections were violated by the union observer. See Michem, Inc., 170 NLRB 362 (1968); In re General Shoe Corp., 77 NLRB 124 , 127 (1948).
The affidavit of Erma Roseblock describing the six conversations she overheard between Mark Collins, the union observer at the election, and employees waiting to vote was uncontroverted. During one of the two conversations, in which Collins was asked by voters regarding his position as the union representative if the union were elected, about three or four other employees were in the voting line; during the other such conversation there were two or three other voters. This means that a total of five to seven other persons, besides the ones immediately talking with Collins, in all probability heard the colloquies, and if they were partial to Collins were influenced to vote for the Union. In an election as close as this one was, the NLRB panel’s conclusion that such communications did not warrant setting aside the election was error.
The chat between Collins and Arlene Mason about the weather, about how glad Collins was that Mason was there to vote, and regarding her ability to be back at work in a week or two, lasted about two minutes. The dialogue between Collins and Calvin Prather, who had brought his young daughter when he came to vote, lasted about one minute and concerned the weather and how attractive the daughter was. In an election line, conversation of such duration is not minor or inconsequential in length.
The majority allows that the two conversations concerning Collins’ prospects to become the Union representative if the Union were elected “bore directly upon the election itself.” But they conclude that statements consisting of social pleasantries are of the type referred to in Michem as “chance, isolated, innocuous comment or inquiry” as the Board found them to be, and therefore insufficient for overturning the election.
The finding that such conversations and pleasantries were “chance, isolated, innocuous comment” and did not affect voters seems to me to be naive and clearly erroneous. * When a person such as Collins approached voters and engaged them in such colloquy, he obviously did so with the intent to ingratiate himself, and thereby the Union, with the voters and so influence their vote. Every politician engages in such activities while campaigning and that was what Collins was doing at the voters lineup.
The fact that Collins already had been warned by the NLRB agent that he should not converse with voters in line, but disregarded that admonition and talked with at least four others, evidences his calculated and persistent purpose to electioneer on behalf of the Union. That was hardly “chance, isolated or innocuous”.
I echo here a part of what the majority quotes from Michem:
[T]he potential for distraction, iast minute electioneering or pressure, and unfair advantage from prolonged conversations between representatives of any party to the election and voters waiting to cast ballots is of sufficient concern to warrant a strict rule against such conduct, without inquiry into the nature of the conversations. The final minutes before an employee casts his vote should be his own, as *486 free from interference as possible. (Emphasis supplied.)
170 NLRB at 362.
This court has suggested in dictum that Michem be interpreted
as prohibiting both the company and the union “from carrying on conversations of any type in the polling area, or while employees wait in line to vote.”
Roberts Tours, Inc. v. NLRB, 578 F.2d 242 (9th Cir. 1978).
The laboratory conditions for voting having been defiled, I would sustain the Hospital’s challenge of the election and deny enforcement of the Board’s order.
I would not defer to the Board panel’s “expertise” in a matter such as this which involves merely ordinary human experience and nothing touching special labor-management concerns.