Cal Gas Redding, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cal Gas Redding, Inc. and General Teamsters and Warehousemen Local 137, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 20-RC- 14636 March 20, 1979 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties, and ap- proved by the Regional Director for Region 20 of the National Labor Relations Board on July 24, 1978, an election by secret ballot was conducted on August 10, 1978, among the employees in the stipulated unit. Following the election the parties were furnished with a tally of ballots which showed that of approximately four eligible voters, three cast ballots, of which two were for, and one against, the Petitioner. There were no challenged ballots. The Employer filed timely ob- jections to conduct affecting the results of the elec- tion. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 20 conducted an investigation and, on August 25, 1978, issued and duly served on the parties her Report on Objections. In her report, the Regional Director recommended that the Board overrule the objections and issue an appropriate certification. The Employer filed timely exceptions to the Regional Director's report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(a)(1) and 2(6) and (7) of the Act. 4. As stipulated by the parties, the following em- ployees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers and service men, excluding all other employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Direc- tor's report, the Employer's exceptions and brief, and the entire record in the case, and hereby adopts the Regional Director's findings and recommendations only to the extent consistent herewith. In considering the Employer's objections, the Re- gional Director concluded that the inability of em- ployee Ronald Lentz to participate in the election was due to unforeseen circumstances which did not war- rant setting aside the election. We disagree.' The election was conducted between 8 and 8:30 a.m., on Thursday, August 10, 1978. At 7 o'clock on the morning of the election, the Employer sent Lentz to fuel a propane gas tank. He finished filling the tank at 7:45 a.m. At that time, he discovered the tank had several leaks and, due to the emergency nature of the situation, was required to stop the gas leaks before returning to the Employer's premises to cast his bal- lot. Lentz completed the necessary repairs and re- turned to the Employer's premises at approximately 8:45 a.m. By that time, the Board agent had com- pleted the balloting, had issued a tally of ballots, and had left the Employer's premises. In recommending that the election not be set aside, because Lentz was prevented from voting due to un- foreseen circumstances, the Regional Director relied on Wanzer Dairy Division of the Southland Corpora- tion, 232 NLRB 631 (1977), and Versail Manufactur- ing, Inc., Subsidiary of Philips Industries Inc., 212 NLRB 592 (1974). We find those cases distinguished from the instant situation for the following reasons. In Versail Manufacturing, Inc., supra, an employee was prevented from returning to vote by personal ac- tivities which were outside the normal course of his duties for his employer. In declining to set that elec- tion aside, the Board distinguished the facts in that case from those in Yerges Van Liners, Inc., 162 NLRB 1259 (1959), where an employee was pre- vented from voting because he was away from the plant in the normal course of his duties for his em- ployer. The Board stated: In our opinion, the fact that required the Yerges election to be set aside was that the employee was caused to miss the election by the Employer, a party to the proceeding. The same protective policy would be applicable if the petitioning union, or the Board itself, prevented an eligible employee from voting. It would be inapplicable, I The Regional Director also concluded, and we agree, that a representa- tive number of eligible voters participated in the election and that evidence intended to show that the employees repudiated the election does not war- rant setting aside the election. 241 NLRB No. 39 290 C(AL GAS REDDING, INC. of course, if the crucial employee was prevented from voting by reason of sickness or some other unplanned occurrence beyond the control of the parties, the Board, or the employee. 2 Thus, in Versail, inasmuch as the employee was pre- vented from voting by his own actions rather than because he was away in the normal course of his du- ties for his employer, the Board declined to set the election aside. In Wanzer Dairy, supra, a driver was prevented from returning to the employer's plant to vote by a severe storm. It was undisputed that the factor which prevented the voter's timely return, the storm, was beyond the control of the parties to the proceeding. The Board, therefore, held that the employee had not been prevented from voting by the conduct of either party and declined to set the election aside.) In the present case, Lentz was prevented from vot- ing because he repaired a leaking propane tank in order to eliminate the emergency situation created by his filling the tank. Whenever an explosive gas is stored under pressure, the potential for dangerous leaks is present. Thus, in our opinion, checking for leaks and making emergency repairs when necessary are integral parts of the normal duties of one filling the tank, regardless of the actual frequency with which such dangerous situations occur. Lentz was not 2212 NLRB at 593. ' Member Truesdale did not participate in the decision in Wanzer Duio. and does not agree with it. He, therefore. would reverse that decision to the extent that it is inconsistent with the decision in this case. prevented from voting by his personal activities, as in Versail, nor was he delayed in returning to vote by some unforeseeable, uncontrollable occurrence like a severe storm, as in Wanzer Dair. Rather, we find that Lentz was prevented from voting by the conduct of the Employer, a party to these proceedings, in sending him out to fill the tank.4 Accordingly, contrary to the Regional Director's recommendation, we shall sustain the Employer's ob- jection, set aside the election, and direct a second election. ORDER It is hereby ordered that the election previously conducted herein on August 10, 1978, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] ' While the Board would normally not set aside an election based on objections raised by the party responsible for the objectionable conduct. we do so here because of the special circumstances of this case. As noted atxL)e. Lentz had completed filling the tank at 7:45 am. Presumabl. therefore. under normal conditions, the task assigned Lentz b the Emploser would have been completed with sufficient time remaining before the close o the balloting for him to return and vote. Thus. there is no evidence and no contention that the Employer dispatched Lentz with the knowledge or ex- pectation that that assignment would prevent him from voting. Further. Lentz' disenfranchisement and the resulting close election occurred because of his responsible attention to an emergency situation. Under all these cir- cumstances. we find that the interest of free employee choice will be served by the direction of a second election. regardless of which party brought the circumstances to our attention 291