NLRB v. Borden, Inc

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 96-60079
Summary Calendar
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NATIONAL LABOR RELATIONS BOARD,

Petitioner,

VERSUS

BORDEN, INC.,

Respondent.

_________________________

Application for Enforcement of an Order of
the National Labor Relations Board
(16-CA-17467)
_________________________

August 1, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

The National Labor Relations Board (the "Board") seeks

enforcement of its order requiring that Borden, Inc., recognize the

United Food and Commercial Workers International Union as the

exclusive bargaining agent for Borden’s production, maintenance,

vault, and warehouse employees (“the unit”) at Borden’s Sulphur

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
Springs, Texas, facility. We grant the application and enforce the

order.

I.

On March 8, 1995, the Board conducted an election at the

facility to determine whether the unit wished to be represented by

the union for collective bargaining purposes. On the morning of

the election, the Board agent responsible for supervising the

election arrived at the polling area without the standard portable

voting booth. Rather than postponing the election, the agent had

Borden construct a makeshift voting booth.

Borden constructed the booth by placing a piece of cardboard

on a chair and then placing the chair against a wall near a corner

of the room. This formed a three-sided voting booth: The booth

was enclosed on two sides by the walls of the room, enclosed on the

third side by the cardboard partition, and open on the fourth side.

A table was placed inside the booth to allow voters to mark their

ballots.

The room also contained an observers’ table. Observers from

the Board, Borden, and the union sat at the table, and voters

awaiting their turn at the ballot box stood beside the table. The

observers’ table was located at least eight feet behind the open

side of the voting booth and six feet from the adjacent wall.

Those seated at the table thus were able to see into the booth at

a forty-five-degree angle, making the interior of the booth

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partially visible to observers and those waiting to vote.

The union won the election by two votes. Borden challenged

the election, claiming that it was not conducted with the necessary

secrecy because the voting booth was not completely enclosed. The

Board ordered a hearing to resolve the challenge.

The hearing officer found that the election was satisfactory.

The officer determined that the table inside the voting booth did

not occupy the entire booth and that voters were able to walk

around the table to a completely concealed part of the booth to

ensure privacy when marking their ballots.1 Furthermore, the

officer noted that none of Borden’s witnesses had testified that

they observed how any employee had voted.2 One of Borden’s

witnesses testified that he could see only the arms and back of a

person standing in the voting booth, while a second witness

testified that he could see the whole person in the booth but did

not believe that he could see the ballot. Based on this evidence

and the physical layout of the voting area, the officer recommended

that the Board reject Borden’s challenge.

The Board adopted the hearing officer’s findings and certified

the union as the exclusive bargaining representative. To obtain

judicial review, Borden refused to recognize the union. The union

1
This was a hotly disputed issue at the hearing. Borden contended that
the table took up the entire voting booth and that voters therefore were unable
to vote in private. Borden does not challenge this finding on appeal.

2
In fact, three of Borden’s witnessesSSone an observer and the other two
votersSStestified that they could not see how any voter had marked his ballot.

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then filed a complaint with the Board, which ordered Borden to

extend recognition. The Board filed this application for enforce-

ment of its order.

II.

Borden argues that the Board erred by upholding the election

despite the absence of a completely enclosed voting booth. We

review the Board’s decisions pertaining to representation elections

only for abuse of discretion.3

In representation elections, the board must take “a secret

ballot of the employees.” 29 U.S.C. § 159(e)(1).4 The Board did

not abuse its discretion in finding that the election satisfied

this requirement. The recommendations of the hearing officer,

adopted by the Board, were based on consideration of the physical

3
Congress has given the Board wide discretion in the
conduct and supervision of representation elections, and
the Board’s decision warrants considerable respect from
reviewing courts. Our review is limited to determining
whether the Board has reasonably exercised its
discretion, and if the Board’s decision is reasonable
and based upon substantial evidence in the record
considered as a whole, our inquiry is at an end.
Representation elections are not lightly set aside.

NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir. 1991) (citations
omitted); see also NLRB v. Heavy Lift Serv., Inc., 607 F.2d 1121, 1123, (5th Cir.
1979) (“[T]he Board's long experience in representation matters requires us to
give special deference to its decisions regarding the effect of challenged
conduct on the results of an election.”), cert. denied, 449 U.S. 822 (1980); NLRB
v. W.R. Grace & Co., 571 F.2d 279, 282 (5th Cir. 1978) (“[T]he Board has been
vested with wide discretion in representation matters, and its decision warrants
special respect by reviewing courts.”).

4
The Board’s own regulations also require that “[a]ll elections shall be
by secret ballot.” 29 C.F.R. § 102.69(a).

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layout of the voting booth, the location of the observer table, and

the absence of testimony that anyone was able to see how any voter

marked his ballot.

Borden calls our attention to Brennan v. Local 3489, United

Steelworkers of Am., 520 F.2d 516 (7th Cir. 1975), aff’d on other

grounds, 429 U.S. 305 (1977), in which the court found that a union

election failed to meet the secret ballot requirement. Local 3489

is easily distinguished on its facts,5 however:

A small table for marking ballots was placed three feet
in front of an elevated officers’ bench. Two members of
the Election Committee were present throughout the 6:00
a.m. to 6:00 p.m. election. Most of the voting occurred
during the last two hours of the day, when the voters
were “jammed together * * * elbow to elbow.” Up to 50
voters were in the room at one time. Many voters marked
their ballots at the aforesaid table and could see each
other’s ballots as they were marked. Others marked their
ballots against the walls, and their markings could also
be observed by voters several feet away. No one was seen
carrying a ballot to the back of the hall to vote, and
some members deliberately “flaunted their votes.” There
was no encouragement of any members to take steps to
prevent others from seeing their ballots.

Id. at 521-22. The voters in the Borden election unquestionably

enjoyed far greater privacy than did voters in the Local 3489

election. Furthermore, while some voters in the Local 3489

election “deliberately flaunted their votes,” there was no

5
Although Local 3489 involved an election for union officers rather than
a representation election, it is not distinguishable on that basis. Both types
of elections must be conducted by “secret ballots,” though the secret ballot
requirements are located in different statutes. Compare 29 U.S.C. § 159(e)(1)
(requiring the board to take “a secret ballot of the employees”) with id. at
§ 481(b) (requiring that unions elect officers “by secret ballot”). There is no
basis for reading the two secret ballot requirements differently.

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testimony that anyone had seen how a single voter marked his ballot

in the Borden election.

The order of the National Labor Relations Board is ENFORCED.

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