Peoples Drug Stores, Inc.

PEOPLES DRUG STORES, INC. Peoples Drug Stores, Inc. Peoples Service Drug Stores, Inc. and Retail Store Employees' Union, Local 400, Retail Clerks International Association, AFL-CIO, Petitioner. Case 5-RC-8161 April 18, 1973 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 27, 1972, the Regional Director for Region 5 issued a Supplemental Decision and Notice of Hearing in the above-entitled proceeding in which he overruled certain of the Petitioner's objections in whole or in part, including objection.3, and directed a hearing as to the remainder.' Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Petitioner filed a timely request for review of the Regional Director's Supplemental Decision on the ground that in overruling objection 3 he departed from officially reported precedent. The National Labor Relations Board, by telegraph- ic order dated January 3, 1973, granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act,, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The Petitioner's objection 3 alleges improper conduct of the election based on the failure of the Board agents to maintain custody of sealed ballot boxes at all times during the course of the election. During a traveling election conducted on October 5 and 6, 1972, nine voting teams, each consisting of a Board agent and an observer for the Petitioner and another for the Employer, were escorted in employer vehicles driven by its employees to six to eight stores twice on each day of the election. After the completion of the first day's balloting, the ballot boxes were sealed, the seals signed over by the observers, and the boxes taken into custody by the Board agent for the night. When the voting teams assembled for the balloting on the second day, the Board agents for two of the teams placed the sealed and signed ballot boxes from the previous day in the trunk of the escort vehicles and took the driver's trunk key for the day. One of the Board agents followed this procedure at the ' The tally of ballots for the election showed that of approximately 3,420 eligible voters, 3,066 cast ballots, of which 976 were for , and 1,608 against, the Petitioner and 482 were challenged The challenges were insufficient to 202 NLRB No. 166 1145 request of the observers. Thus, the sealed ballot boxes were placed in the teams' locked auto trunks and left there until after the election. While the teams conducted the polling at each of 12 to 16 locations during the day, the driver escorts apparently re- mained in the vehicles parked outside the store. The polling at each location lasted approximately 10 minutes. During the dinner break that day, as on the previous day, drivers accompanied the Board agent and the observers. At the conclusion of the balloting, the representa- tives of both parties signed the certifications of conduct of the election. The ballot boxes were inspected by authorized representatives of the parties and no question was raised concerning the security of the ballot boxes. In finding objection 3 to be without merit, the Regional Director noted that during the election no party objected to the security practices with regard to the ballot boxes, that all parties inspected the boxes prior to the count and did not question the integrity of the seals, and that no party produced evidence that the boxes had been tampered with. The Petitioner contends that the Regional Director used an improper standard for evaluating the objection and further contends that had the proper standard been applied, the facts here would have compelled that the election be set aside. We agree with the Petitioner that its objection relating to the integrity of the election process requires an assess- ment of whether the facts indicate that a reasonable possibility of irregularity inhered in the conduct of this election.2 However, we do not agree with it that there was any reasonable possibility of irregularity in the conduct of the election herein. The ballot boxes left in the locked trunks of the escort cars were sealed and the seals signed over. The method of securing the ballot boxes by locking them in the trunks of escort vehicles was apparently decided upon shortly before being implemented. The Board agents were away from the car only for short intervals during the day. Although it is theoretically possible that the drivers of the two vehicles happened to have among their possessions that day duplicate trunk keys and thus could have entered the locked trunks, it is highly improbable that anyone would have formulated such a plan on such short notice, furtively obtained possession of the ballot boxes, removed the seals, tampered with the ballots, replaced the seals, and left no evidence of tampering. For these reasons, we affirm the Regional Director's conclusion to overrule objection 3. affect the results 2 Polymers, Inc, 174 NLRB 282, enfd 414 F 2d 999 (C A 2, 1969), cert denied 396 U S 1010 J 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall remand the case to the with his Supplemental Decision and Notice of Regional Director for further proceedings consistent Hearing. 'Y U S GOVERNMENT PRINTING OFFICE 1974 0-506-114