Polymers, Inc., Petitioner, v. National Labor Relations Board, Respondent, 414 F.2d 999 (2d Cir. 1969)

Before LUMBARD, Chief Judge, FEINBERG, Circuit Judge, and TIMBERS, District Judge.^* 

TIMBERS, District Judge:

This case presents chiefly the question whether the National Labor Relations Board should have set aside a representation election because of alleged irregularities in its conduct, the Board having concluded that "desirable election standards were met and that no reasonable possibility of irregularity inhered in the conduct of this election."¹  (Emphasis added.) Subordinate questions presented are whether the Board should have held a hearing on the company's objections to the election and whether the Board was justified in refusing the company's request to inspect a Board document entitled "A Guide to the Conduct of Elections."

Polymers, Inc., a Vermont corporation engaged at Middlebury in the manufacture, sale and distribution of synthetic fibers, has petitioned for review of an order of the Board which directed it to cease and desist from refusing to bargain collectively with Teamsters, Chauffeurs, and Warehousemen's Local 597, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The Board has cross-petitioned for enforcement of its bargaining order. The key issue is whether the Board's certification of the union is valid; if so, the company's admitted refusal to bargain violated Section 8(a) (5) and (1) of the Act.

We hold that the Board did not abuse its discretion in finding, without a hearing, that the alleged irregularities in the conduct of the representation election, considered in light of all the facts and circumstances surrounding the election, did not raise a reasonable possibility of irregularity and thus did not require that the election be set aside. We also hold under the circumstances of this case that the Board was justified in refusing to produce the Guide.

Accordingly, we deny the petition of the company to set aside the order of the Board, and we enforce the Board's order.

The essential facts regarding the conduct of the election are not in dispute. A split session election was held on November 15, 1966 at the company's plant in Middlebury. After the first morning session, the ballot box was sealed, taped and signatures were affixed. The Board agent in charge of the election then placed the box in the rear of his station wagon, along with a leather brief case containing blank ballots. The station wagon was locked. The agent, along with the company and union observers, walked to a nearby diner for coffee. The ballot box and blank ballots remained in the locked station wagon parked 50 to 75 feet from the diner during the 30 to 45 minute period that the agent and observers were in the diner.

After the midmorning voting session, the ballot box again was sealed and signatures were affixed. The Board agent placed it under a sweater in the rear of his station wagon which he again locked. Taking the brief case with the blank ballots along with him, he remained away from the station wagon from approximately 11 A.M. to 2 P.M.

No objections were interposed, nor suspicions voiced, by the company to these procedures until after the ballots were counted and the union victory was made known.²  The company thereafter asserted that the failure of the Board agent to adhere to appropriate safeguards in the sealing and custody of the ballot box, and in the security of the blank ballots, required that the election be set aside due to the existence of a "possibility of irregularity." Specific alleged deficiencies included (1) sealing of ballot box edges and slot with (easily removable) masking tape instead of gummed paper; (2) signing of names wholly on tape without continuation onto cardboard surface of ballot box; (3) taping of slot and signatures without extending tape onto cardboard surfaces; (4) failure of Board agent to ask observers whether they were satisfied with the manner of sealing; and (5) failure of Board agent to retain box in his custody between polling periods.

In addition to the above specific alleged deficiencies, the company's suspicions were aroused by the appearance of many ballots in neatly creased stacks at the time of initial tabulation, and the shift in sentiment from the results of a previous election,³  contrary to indications the company is said to have had from its employees. On the basis of these factors, the company objected to the election.

The regional director conducted an investigation into the alleged irregularities. The Board affirmed his findings. Although the Board recognized that the conduct of the election did not comport with optimal safeguards of accuracy and security, and it acknowledged that the sealing of the ballot box could have been improved upon, it concluded that "desirable election standards were met and that no reasonable possibility of irregularity inhered in the conduct of this election." (Emphasis added.) Enlarging upon its specification of the "reasonableness" of the possibility as a determinative factor, the Board stated:

"We do not think, however, that the word `possibility' could ever be construed in this context to have the connotation of `conceivable.' The concept of reasonableness of the possibility must be imported into this test in order for it to have meaning."

Thus, the Board declined to apply a standard which would disregard the remoteness of the possibility of irregularity. On the facts before it, the Board concluded that there was only a remote possibility of the occurrence of two unlikely events: that someone had entered the Board agent's locked station wagon during either the first session (when both ballot box and blank ballots were there) or the second session (when only the ballot box was there); and that such person had tampered with the box without leaving a trace of visible irregularity.

Polymers does not contend that the failure of the Board agent to adhere to insignificant procedures for safeguarding an election requires that it be set aside; but it urges, since the procedures of sealing and custody are so crucial to the ability of the interested parties to "know with certainty" that tampering has not occurred, that election results should not be certified when such deviations occur.

In the past the Board has refused to certify election results where a possibility of irregularity existed. Although the "reasonableness" standard applied in the instant election has not been articulated explicitly in previous Board decisions, its applicability is evident both from the opinions themselves and from the instances in which the Board, as here, has declined to set aside elections.

Briefly, elections have been set aside where (1) three days after a discrepancy in the number of ballots was discovered, the ballots were found, the room having been locked during the three day period;⁴  (2) the Board agent, while being transported between polling places by company and union observers, failed to seal or tape the ballot box;⁵  (3) an unsealed package of blank ballots was left unguarded for twenty minutes in a polling area;⁶  and, most recently, an unsealed ballot box remained unattended from two to five minutes.⁷ 

On the other hand, election results have been certified even though (1) blank ballots were in the voting area while the Board agent was not;⁸  (2) an unsealed ballot box was in the possession of the agent and the company observer, the union observer having suddenly departed;⁹  and (3) the Board agent was temporarily absent from the polling place.¹⁰ 

This line of conflicting precedents reflects the principle that each possibility must be assessed upon its own unique facts and circumstances, under expert analysis by the Board, to determine whether to certify or set aside. A per se rule of possibility would impose an overwhelming burden in a representation case. If speculation on conceivable irregularities were unfettered, few election results would be certified, since ideal standards cannot always be attained.

The rule of absolute possibility, urged by Polymers, recently has been rejected by the Fifth Circuit in affirming a certification order of the Board. NLRB v. Capitan Drilling Co., 408 F.2d 676 (5 Cir. 1969), enforcing 167 N.L.R.B. No. 18, 66 L.R.R.M. 1015 (1967). The company there alleged that a seam of the ballot box was not sealed with masking tape and that enough space remained to insert or remove ballots during the time the box was in the custody of the Board agent (pending the counting of the ballots on the subsequent day):

"In essence, the Company's sole argument rests upon one missing strip of tape, and the uncorroborated speculation, based on that fact, that the ballot box could have been tampered with. We do not think that this offer of proof is sufficient to necessitate an evidentiary hearing or the setting aside of the election." 408 F.2d at 677.

The burden of setting aside an election is a heavy one and falls upon the party attacking it.¹¹  In the instant case, the decision of the Board to certify the union was neither arbitrary nor capricious, nor did it represent a departure from the principles by which the Board had made similar determinations in the past. The essence of the company's complaint was the ease with which the masking tape used on the ballot box could have been removed and the blank ballots inserted with fraudulent votes. These allegations presupposed a spontaneous reaction by unknown parties to the fortuity of the ballot box and blank ballots remaining in an unguarded but locked station wagon, and the perfect execution of a plan to tamper. (Worthy of a Holmes or Hitchcock plot, but hardly of labor-management relations in Vermont!) That such possibility is remote is simply beyond dispute. Rejection of the per se possibility rule advocated by the company requires rejection of its claims. The Board evaluated the possibility; if its expertise means anything, it should be given weight in determining, as here, whether procedures were adequate to safeguard a common part of its everyday operations.¹² 

Hearings need not be held on objections to representation elections unless by prima facie evidence the moving party presents substantial and material factual issues which, if resolved in its favor, would warrant setting aside the election.¹³  In NLRB v. Joclin Mfg. Co., 314 F.2d 627, 631-32 (2 Cir. 1963), we recognized that the Board's discretion in determining whether or not to hold a hearing was not unfettered, but we held that it could condition the right to a hearing on the existence of substantial and material issues: " [This] requirement [is] not only proper but necessary to prevent dilatory tactics by employers or unions disappointed in the election returns."¹⁴  Where, as here, the Board accepts the factual allegations of the company, and no additional facts remain to be developed, a hearing is unnecessary.¹⁵  Conclusory allegations based upon undisputed facts and questions raised regarding ultimate interpretations by the regional director, do not raise material and substantial issues requiring a hearing.¹⁶  Absent a change in circumstances, not present here, the Board's refusal to permit the introduction of additional evidence in an unfair labor practice proceeding, where the company has had full opportunity to present its claims to the regional director, will not be disturbed.¹⁷  The inferences and conclusions which the company here wished to have drawn regarding the conduct of the election could be, and were, made known to the Board without the necessity of a hearing. The company's offer of proof was insufficient. As indicated above, accepting the facts as true, there was no warrant for setting aside the election. The request for a hearing was properly denied.

The company sought, and was denied, access to a Board document entitled "A Guide to the Conduct of Elections."¹⁸  The Board's denial is challenged as in contravention of the Freedom of Information Act of 1966, 5 U.S.C. § 552, and in violation of due process. As to the statutory claim, § 552(a) (2) (C) requires an agency to make available "administrative staff manuals and instructions to staff that affect a member of the public." This provision, however, is subject to certain limitations; § 552(b) (2) excepts from the operation of the statute matters that are "related solely to the internal personnel rules and practices of an agency." The House Report interpreted this exception to cover " [o]perating rules, guidelines and manuals of procedure for government investigators or examiners. . . ."¹⁹ 

The Guide is said to be an internal advisory document for the use of Board personnel and plays no significant role in the Board's adjudication of election disputes. As such it appears to fall within the further exception specified in 5 U.S.C. § 552(b) (5) as an "intra-agency memorandum."²⁰ 

While the interest of the Board in refusing to produce the Guide is not clear, its relevance to the instant controversy is even less clear. We do not hold that under no circumstances would the Board be required to produce the Guide; but in the context of the instant case we will not disturb the refusal of the Board to produce the Guide.

Enforced.