Avondale Industries, Inc. v. National Labor Relations Board

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-60708

AVONDALE INDUSTRIES, INC.,

Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner,

Petition for Review for Enforcement of the
order of the National Labor Relations Board

July 7, 1999

Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges:

EDITH H. JONES, Circuit Judge:

Avondale Industries, Inc., a shipbuilding company,

engaged in a short but hotly-contested union representation

election with the New Orleans Metal Trades Council, AFL-CIO (“the

Union”), which was vying for a bargaining unit of approximately

4,000 employees. The issue that is determinative on appeal is

whether the National Labor Relations Board enforced voter

identification procedures that sufficiently protected the integrity

of the election. Under the circumstances presented here -- a very

large work force, the NLRB’s foreknowledge that a substantial

number of the votes would be challenged, observers unable to be
personally acquainted with the voters, multiple voting zones, an 11

1/2-hour election day without rigid controls over employee access

to the polls, serious allegations of improper campaign tactics, and

a close result -- we conclude that the voting identification

procedures were fatally flawed. The NLRB’s bargaining order may

not be enforced, and a new election must be conducted.

I. FACTUAL AND PROCEDURAL HISTORY1

On May 11, 1993, the Union petitioned the NLRB for a

representation election at Avondale. Following a representation

hearing, Avondale and the Union executed a consent agreement for an

expedited election to be held on June 25, 1993 -- sixteen days

after the agreement was consummated.

Two weeks before the election, Avondale supplied the

Union with an Excelsior2 list of eligible voters. The Excelsior

list included the last name, first initial, and home address of the

eligible employees. Although the Union requested a more detailed

Excelsior list containing the first name and employee number of the

1
On appeal, Avondale has challenged several procedural aspects of the
representation election including the NLRB’s certification of the bargaining
unit, the challenge ballot process employed during the election, and the Union’s
allegedly racially discriminatory use of challenges. Avondale also asserted
several due process claims regarding the post-election hearing. Because we
decide this case on the issue of voter identification, a complete discussion of
the other issues underlying the appeal is unnecessary.
2
Excelsior Underwear, 156 N.L.R.B. 1236, 1239-40 (1966) (requiring
employer to turn over list of the names and addresses of all eligible voters in
certification election). The Excelsior list provided by Avondale listed all
eligible voters, including a group of employees whose unit status was not yet
determined -- the Not On List (“NOL”) employees.

2
eligible voters, Avondale initially refused to provide the

information.3 On the eve of the election, however, Avondale

revised its position and offered to place employees’ first name and

employee number on the identification lists to be used during

actual balloting. The Union rejected this offer.

Electioneering was contentious and bitter. Moreover,

because the company and union could not agree on the size and

composition of the bargaining unit, the NLRB was aware that

hundreds of NOL employees would have to cast challenged ballots.

As the election approached, the Union threatened to issue up to

1,000 challenges. Particularly troubling are allegations that the

Union made racial appeals to win votes.

The election was held at Avondale as scheduled. Polling

was conducted at five voting zones dispersed within the sprawling

industrial facility. Each of the zones was manned by three NLRB

officials and four election observers -- two from Avondale, and two

from the Union. Two lists of employees were furnished. A “Master

Voting List” enumerated all employees (except the NOL employees)

eligible to vote in the election, identifying them by their last

name, first and middle initial, and address. The “Zone Voting

3
When created, the Excelsior list provided by Avondale complied with
controlling NLRB precedent. In 1994, the NLRB revised the Excelsior list
requirements. Now, an employer is required to furnish the full name of all
eligible employees. See North Macon Health Care Facility, 315 N.L.R.B. 359, 361
(1994) (finding an employer’s refusal to supply only the last name and first
initial of eligible employees constituted objectionable conduct).

3
List” employees broke down the Master List to identify employees

who were assigned to vote in a particular zone.

Supervisors escorted most employees to the voting zones

during regular work times. When an employee presented himself to

vote, the employee identified himself by name at the check-in

table. If the employee could not be identified by name, the

observers were advised to ask the employee’s address or to identify

him by his identification badge. Avondale, a defense industry

contractor, enhanced plant security with employee identification

badges that contain the employee’s first name and employee number

and a thumbnail-size photograph. When the employee’s name appeared

on the Zone Voting List, the list was marked and the employee

allowed to vote. If the employee could not be identified, or was

challenged by the Union “for cause,” or was an NOL employee, the

employee voted subject to challenge. Eventually, 850 challenges

were issued. Given the 3,000 unchallenged voters, complaints were

made against approximately one out of every four voters.

While initial results suggested a 600-vote margin of

victory for the Union, Avondale’s defense of the challenged ballots

was surprisingly successful. The NLRB hearing officer counted over

70% of the disputed, counted ballots for the employer, reducing the

4
Union’s victory margin to about 250 votes. A swing of 130 votes

would reverse the election results.4

Pertinent to this appeal, Avondale challenges the

integrity of the election in two ways. First, the company

complains that NLRB refused to enforce any system of routine voter

identification beyond voluntary self-identification. In practical

effect, no one can be sure who voted in the representation

election. Second, the NLRB disabled Avondale’s post-election

investigation of this issue, as it steadfastly withheld copies of

the marked voter list that would have revealed who voted, how often

they may have voted, and the status of challenged voters. After

Avondale successfully prosecuted a Freedom of Information Act case

up to this court to obtain the voter lists, and then analyzed the

lists, uncovering potentially suspicious voting involving hundreds

of ballots, NLRB refused to reopen the certification hearing and

summarily dismissed this part of Avondale’s claim. The NLRB,

acknowledging that no routine voter identification system was in

place, responds that it used “standard voter identification

4
The original count was 1804 for the Union and 1263 for Avondale, with
850 challenged ballots. Five hundred fifteen challenged votes were counted, with
Avondale receiving 369 of these votes to 146 for the Union. See ibid. Fifty-
nine votes remained undetermined, which, under established Board precedent, are
assumed to be added to the lower total to determine whether the election can
stand. See, e.g., NLRB v. Pinkerton’s, Inc., 621 F.2d 1322, 1329-30 (6th Cir.
1980); Byers Eng’g Corp., 324 N.L.R.B. 125 (1997); Wolverine Dispatch, Inc., 321
NLRB 796 (1996). Accordingly, the final vote total was 1950 for the Union to
1691 (1632 plus the 59 undetermined voters) for Avondale, for a gross difference
of 259.

5
procedures,” that Avondale’s arguments are exaggerated, no evidence

of voter fraud exists, and the election should not be overturned on

speculation.

II. ANALYSIS

An order requiring an employer to negotiate with a union

will be enforced if the NLRB’s decision to certify the union is

“reasonable and based on substantial evidence in the record.”

NLRB v. McCarty Farms, Inc., 24 F.3d 725, 728 (5th Cir. 1994). The

certification order’s enforceability depends, in turn, on the

validity of the underlying election. See id. (citing NLRB v. Hood

Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir. 1991)). If the

union was not certified properly, this court may refuse to enforce

the unfair labor practice order and remand the proceedings to the

NLRB. See Deming Div., Crane Co., 225 N.L.R.B. 657, 657 n.3

(1976).

A representation election is presumed to be fair and

regular, unless proven otherwise. See NLRB v. Mattison Mach.

Works, 365 U.S. 123, 124, 81 S. Ct. 434, 435 (1961). In overseeing

a representation election, the NLRB aspires to “an ideal atmosphere

in which a free choice may be made by employees, protected from

interference by employer, union, Board agent or other parties.”

Home Town Foods, Inc. v. NLRB, 416 F.2d 392, 396 (5th Cir. 1969)

(citations omitted). While “laboratory conditions” represent the

ideal, “clinical asepsis is an unattainable goal in the real world

6
of union organizational efforts.” NLRB v. Sumter Plywood Corp.,

535 F.2d 917, 920 (5th Cir. 1976). Thus, a reviewing court must

compare the conduct of a challenged election to the laboratory

conditions paradigm, recognizing the contaminating influence of

“the realities of industrial life.” Exeter 1-A Ltd. Partnership v.

NLRB, 596 F.2d 1280, 1283 (5th Cir. 1979).

When examining the voter identification procedures

employed in a representation election, this court does not sit to

determine “whether optimum practices were followed, but whether on

all the facts the manner in which the election was held raises a

reasonable doubt as to its validity.” NLRB v. ARA Servs., Inc.,

717 F.2d 57, 68 (3d Cir. 1983); see also Polymers, Inc., 174

N.L.R.B. 282, 282-83 (1969). Even under this deferential standard,

however, reasonable doubt means “reasonable uncertainty,” not

“disbelief” or “conclusive proof”. Allentown Mack Sales and

Service, Inc. v. NLRB, 522 U.S. 359, ____, 118 S. Ct. 818, 823 &

n.2 (1998). Voter identification procedures appropriate for

representation elections in small units may be inadequate when the

eligible voting pool becomes very large. As the NLRB Casehandling

Manual suggests, “[Voters] may also be asked for other identifying

information, as appropriate and as formerly agreed on.” NLRB,

Casehandling Manual (Part Two), Representation Proceedings, §

11322.1 (emphasis added) (“NLRB Casehandling Manual”)

7
 Thus, in Monfort, Inc., 318 N.L.R.B. 209, 209-10 (1995),

NLRB rejected challenges to individuals who claimed their names had

been crossed off the voter lists before they arrived at the polls,

where employee identification cards were used to assist in

identification in a 1,500 employee unit. More on point with this

case, in Newport News Shipbuilding and Dry Dock Co., 239 N.L.R.B.

82, 88 (1978), the election officials utilized the last four digits

of social security numbers to identify voters in a 19,000 employee

unit. NLRB relied heavily on this method of identification to

prove the overall accuracy of the election. As a result, the Board

emphasized that limited deviations from the procedure -- whereby

observers asked “only” for voters’ names for a few minutes at one

polling site when polling was very heavy -- could not prejudice the

overall election results. See id. NLRB described the Newport News

voting procedure as “certainly consistent with established Board

practices.” Id.

In the Avondale election, by contrast, only the voter’s

name was required to permit an employee to vote. There is no

dispute that this was the routine practice followed in the

election. During the post-election hearing, after Avondale had

introduced voluminous testimony on the practice, the NLRB hearing

officer entered an order precluding further similar evidence as

“cumulative or irrelevant.” NLRB justifies verbal self-

identification as its norm and standard procedure, evidenced by the

8
testimony of Assistant Regional Director (“ARD”) Joseph Norton, the

NLRB’s director for the Avondale election:

[N]ot only in this election, but in any
election, we assume that when John steps up to
the table and he is asked his name and he
says, I am John Doe. And [election observers]
say, where do you live? And he says, I live
at 102 Smith Street, that this is the John Doe
that lives at 102 Smith Street. What further
identification do you need. There is a
presumption, if you will, that [voters] are
not going to walk in to lie. Moreover, in
this particular situation, [voters] are
actually being controlled from the point of
where they worked to the voting area. Why
would [voters] not be telling the truth? Why
would voters lie as to their name and where
they live? (emphasis added).

Parenthetically, it must be added that asking employees to give

their addresses for identification purposes was not, contrary to

ARD Norton’s testimony, the routine procedure employed in the

Avondale election.

NLRB attempts to deflect its responsibility to protect

the integrity of the ballot by noting that the Union and Avondale

could not agree on a system of objective voter identification5 and

by implying that the ARD learned too late the inadequacy of

employee badges for this purpose. NLRB also charges the election

observers with dereliction for any deficiency in identification

5
Avondale offered to provide full first and last names and clock
numbers on the Master and Zone Voting Lists the night before the election.
Unfortunately, the Union, retaliating for what it believed was inadequate
information on the Excelsior list, rejected Avondale’s offer. At oral argument
in this court, the Union offered no logical explanation for this rejection.

9
procedures, because observers appointed by the parties “not only

represent their principals but also assist in the conduct of the

election.” NLRB Casehandling Manual, § 11310. But notwithstanding

the flexibility allowed for in-person voting procedures and the

incentives for the parties to agree and cooperate, the buck stops

with the NLRB. The first admonition in the Board’s manual for the

conduct of elections is:

The responsibility for the proper conduct of the election
is the Regional Director’s acting through the assigned
Board agent. Extreme care must be exercised both in the
preparation and in the conduct of elections.

NLRB Casehandling Manual, § 11300.

The integrity of an election cannot be maintained without

assurance that the voters who cast ballots were eligible to do so.

Thus, voters had to be employees whose names were on the lists

agreed to by the Union and Avondale, and they had to identify

themselves as the persons enumerated in the list. The importance

of reliable voter identification is reflected in NLRB’s elaborate

precautionary rules governing mail-in ballots. See NLRB

Casehandling Manual, § 11336. Obviously, more flexibility is

called for in developing identification procedures for in-person

balloting. Representation elections cover bargaining units that

may range from a few dozen employees at one worksite to thousands

of employees dispersed among multiple shifts at numerous worksites.

Verbal self-identification is appropriate when -- as is probably

10
true in a large portion of cases -- it is likely that the observers

are personally acquainted with the voters. It is wholly

inadequate, however, as the sole guide to identification, where a

very large bargaining unit is contemplated, and the voter lists

contain virtually the only information that will assure the

identity of the voters. The procedures used in Newport News and

Monfort, Inc. confirm this common sense notion and equally condemn

the unthinking adoption of “standard practice” for a multi-thousand

employer like Avondale.

The voter identification procedure in this case was

utterly insufficient. It is undisputed that most of the observers

did not know the hundreds of employees who appeared during their

stints at each of the voting zones. It is also undisputed that

employee badges, which stated the employee’s first name only and

had a tiny photograph, were inadequate to prove that the voter was

the person whose last name, first and middle initials, and address

appeared on the Zone and Master Voting Lists. According to the

procedure used, an employee whose first name was “Jane” could

identify herself as any voter on the Zone list with a first initial

“J” and could vote on no more sure proof of identity.6 Lest this

6
Not only could an employee without an identification badge often vote
unchallenged merely by giving another person’s name to the observers, but a voter
with an identification badge and the same first initial of a voter on the Zone
Voting List could also vote unchallenged. Thus, an employee with “John” on his
identification badge could vote for any employee identified on the Zone Voting
List whose first initial was “J.” In either situation, no observer would need
to ask for further identification, such as an address -- the fraudulent voter’s

11
be thought an unlikely possibility, the NLRB hearing officer

adjudicated fourteen claims regarding employees whose ballots were

challenged because they appeared to vote after their names had

(perhaps erroneously) already been crossed off the voting lists.7

The NLRB hearing officer confirmed the identification procedures as

a source of potential confusion:

[m]ost importantly, many of the employees had
corresponding initials which might have created some
confusion in regard to the checking off of the correct
names. I have also noted that the employees’ badges did
not contain the last names of employees which might have
exacerbated the confusion. . . .8

Had the voting list contained full names and employee clock numbers

or social security numbers, information which could quickly be

corroborated by the employee or a driver’s license, no uncertainty

would have arisen.

NLRB objects that most voters truthfully identify

themselves. This is undoubtedly true, and was undoubtedly true in

this election, but it does not detract from NLRB’s own reliance on

assumed name would have appeared on the list as an eligible voter. In his
testimony, ARD Norton admitted as much.
7
This being Louisiana, the duplicate names included Chauff, Boutain,
Thibodeaux, and Plaisance, as well as more common names like Taylor.
8
The hearing officer implied at this point that the deficient
information on the voting lists was attributable to Avondale, because it
“provid[ed] an Excelsior list with first initials of employees instead of
Christian names”. The officer erred in drawing this conclusion. Avondale
volunteered before the election to add full names to the voting lists, but the
Union refused. Moreover, ARD Norton testified that the Excelsior list was a
completely separate document that he never saw; consequently, any limitations on
the Excelsior list cannot be lumped with the inadequacy of the voting lists.

12
the last 4 digits of social security numbers in Newport News as a

visible assurance of election integrity. Moreover, the truism

lacks force in this election for two powerful reasons. First, the

election contest was bitter and hostile, sure to provoke suspicion

in whichever party lost. From the number of threatened challenges

and the parties’ inability to agree whether hundreds of employees

would be in the bargaining unit, to the parties’ other

disagreements every step of the way toward the election, ARD Norton

should have foreseen a prolonged administrative struggle. An

objective voter identification procedure would have belied

suspicions, discouraged attempts at vote fraud, and averted this

source of future litigation. Second, the election was close. The

Union finally achieved 54% of the votes, but a margin of only 130

votes out of nearly 4,000 cast and counted controlled the result.

The wisdom of hindsight cannot alone dictate rejection of the

inadequate voter identification procedure, but it confirms that

NLRB must deploy its flexibility with “extreme care”, especially

when conducting high profile, hotly-contested representation

elections.9

9
NLRB contends that requiring verification by means of employee driver
licenses, social security numbers or clock numbers is impractical. But social
security numbers were used successfully, indeed were relied on by NLRB, in
Newport News, where a 19,000 member bargaining unit was at issue, and, given the
65 polling places used there, an average of 1,250 voters were appearing at each
station. The common experience of any adult who has voted at the local precinct
and been required to produce a voter registration card conflicts with NLRB’s
complaint.

13
 On a more fact-specific level, parroting the hearing

officer’s allocation of responsibility, the NLRB and the Union have

attempted to saddle Avondale with the blame for any failure in

voter identification. They contend that Avondale exercised

extensive control over when and where the employees voted, thus

limiting the potential for voter fraud. Although the company’s

escort procedures were of some benefit, they by no means furnished

the exclusive means for voting. No employer controls could be or

were applied during lunch, breaks, or shift changes, when employees

were allowed to vote without being escorted to the voting zone by

their supervisor. No one had to vote when taken to the polling

place by the supervisor. The supervisor did not oversee the name

under which an escorted employee purported to vote, and nothing

prevented unescorted fraudulent voting during lunch, breaks, and

shift changes. Employees absent from work could come in at any

time to vote. Staggered voting and zoned polling places can not

replace inadequate voter identification procedures.

The crux of the inadequate identification procedure is

this: no one knows exactly who voted in the Avondale election.

Moreover, the challenge procedure could not function properly,

where the initial and usual method for identifying a voter was an

identity between his first name and stated last name and the

initial and last name on the Zone or Master List. Election

observers would have had to interfere with the “routine” procedure

14
in nearly every case in order to compel objective identification or

insist upon challenges. The ultimate basis for approving the

outcome of this election is the NLRB’s hope that most employees

voted truthfully. Such a hope does not fulfill the standard of

“extreme care” that the NLRB itself sets for the conduct of

representation elections. The NLRB’s reliance on mere hope,

unsupported by objectively verifiable voter information, raises a

reasonable doubt as to the fairness and validity of the election.

While evidence of voter fraud could not be reliably

investigated based on the voter identification procedures used at

Avondale, the company nevertheless produced specific evidence of

potential voter fraud stemming directly from the failed

identification procedures. When Avondale finally received the

marked, unredacted voting lists,10 many employees allegedly absent

from work on the date of the election were shown as voting. The

gate logs at Avondale, a highly secure facility, failed to confirm

entry by many of these absent employees.11 In Voting Zone 3, many

10
Avondale was forced to file a Freedom of Information Act claim
against the NLRB in order to recover the lists. See generally Avondale Indus.,
Inc. v. NLRB, 90 F.3d 955 (5th Cir. 1996).
11
The marked, unredacted voting lists indicate that potentially 126
employees absent on the day of the election cast ballots in the representation
election. Of the 185 ballots cast by absent workers, Avondale is able to account
for only 59 of the “absentee” ballots through excused, election-related absentees
and by checking available gate logs for plant entry by otherwise absent employees
for election purposes. Although Avondale was unable to locate the gate log for
one gate, and employee movement during shift changes and lunch breaks is not
recorded on the logs, the evidence was sufficiently specific to raise
considerable doubt regarding the absentee employees’ participation in the
election.

15
employees were marked in a strange fashion, potentially indicating

that the employees cast more than one ballot. Other anomalies

appear in comparing the actual voting lists with extrinsic

identification methods.12 Although the NLRB offers plausible

explanations for some of these anomalies, no hearing was held on

Avondale’s late-obtained evidence, and we are thus required to view

it in the light most favorable to Avondale. See Trencor, Inc. v.

NLRB, 110 F.3d 268, 270 (5th Cir. 1997). At the very least,

Avondale’s evidence raises serious questions concerning the

possible occurrence of vote fraud.

III. CONCLUSION

The NLRB’s failure to implement more extensive

identification procedures for this large-scale representation

election, combined with evidence of potential voter fraud, raises

serious questions regarding the validity of the representation

election conducted at Avondale. We do not minimize the

difficulties faced by ARD Norton in overseeing the contentious

election and mediating between two difficult parties, nor do we

condemn the herculean efforts of the hearing officer in post-

12
According to the affidavit of Rhonda W. James, a paralegal employed
by Avondale’s attorneys, the marked, unredacted voting lists showed at least 13
“phantom” ballots (i.e., while 3265 votes were cast from “listed voters” in the
election, only 3252 employees were marked as having voted) and 100 multiple-vote
voters. In fact, the NLRB sustained a challenge to the ballots of seven voters
because, “Although . . . observers might have inadvertently checked off the wrong
names . . . this evidence was insufficient to prove that any of the challenged
ballots at issue were the first and only ballots cast by the voters in question.”
NLRB Decision and Direction, at 6-7 (Feb. 5, 1997).

16
election proceedings. Unfortunately, based on the above-discussed

characteristics and systemic failure in the Avondale electoral

process, the mistakes cannot be remedied by remand for additional

post-election hearings. Accordingly, we REMAND this action to the

NLRB with instructions to set aside the representation election

held at Avondale on June 25, 1993, and to conduct further

proceedings consistent with this opinion. The NLRB’s order

requiring Avondale to bargain with the Union is VACATED.

Avondale’s motion to supplement the record is DENIED.

VACATED and REMANDED.

17