Zero Foods Co.

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sysco Foods Services, Inc. d/b/a Zero Foods Co. and Teamsters, General Drivers, Warehousemen & Helpers Local Union No. 968, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America. Case 23-RC-4054 November 7, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE By MEMBERS JENKINS, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, executed by the parties and ap- proved by the Regional Director for Region 23 of the National Labor Relations Board on February 7, 1974, an election by secret ballot was conducted on February 27, 1974, under the direction and supervi- sion of the Regional Director among certain employ- ees of the above-named Employer. Upon the conclusion of balloting, the parties were furnished with a tally of ballots which shows that there were approximately 45 eligible voters and that 48 ballots were cast of which 27 were for, and 9 were against, the Petitioner. There were 12 challenged bal- lots. The challenged ballots are not sufficient in num- ber to affect the results of the election. On March 6, 1974, the Employer filed timely ob- jections to conduct affecting the results of the elec- tion. The Regional Director caused an investigation concerning the objections to be made and, thereafter, on April 12, 1974, issued and duly served on the par- ties his Report and Recommendation on Employer's Objections to Election. In his report, the Regional Director recommended that the objections be over- ruled in their entirety and that the Petitioner be certi- fied as the collective-bargaining representative of the employees in the stipulated unit. Thereafter, the Employer filed timely exceptions to the Regional Director's report and a supporting brief, requesting that the Board reverse the recom- mendation to overrule its objections or direct a hear- ing to resolve alleged material and substantial issues raised by the objections. The Petitioner timely filed a response to the Employer's statement of exceptions and a supporting brief. On June 27, 1974, the Board issued a Decision and Order Directing Hearing, adopting the recommenda- tion of the Regional Director with respect to overrul- ing Employer's Objections 1, 2, 3, 4, 6, and 7, but directing that a hearing be held on Objection 5, pres- ently considered. On August 12, 1974, the Hearing Officer issued his Report on Objections in which he recommended that the Employer's Objection 5 be overruled and the Pe- titioner be certified. Thereafter, the Employer filed timely exceptions to the Hearing Officer's report and a supporting brief, and the Union filed an answering 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. The Board has considered the Hearing Officer's report, the exceptions and briefs, and the entire rec- ord in the case, and hereby adopts the Hearing Officer's findings and recommendations. The following unit is appropriate: All production and maintenance employees in- cluding truckdrivers, mechanic and shipping and receiving clerks, excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majqrity of the valid ballots have been cast for Teamsters, General Driv- ers, Warehousemen & Helpers Local Union No. 968, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organiza- tion is the exclusive representative of all the employ- ees in the unit found appropriate herein for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employment, and other condi- tions of employment. MEMBER KENNEDY , dissenting: For the reasons set forth in my dissent to the Board's Order which directed a hearing on objections in this case, I believe that the scope of the hearing should have included the issues raised by the Employer's Objections 4 and 6. If the Board agent refused to accept a challenge to a voter's ballot, as alleged in Objection 4, it could have had a sufficient prejudicial impact to require setting aside the election. If the two union agents de- layed leaving the vicinity of the polling area and in- sisted in a loud and angry manner that they were going to stay, as alleged in Objection 6, such conduct could have destroyed the laboratory conditions. Ac- cordingly, I dissented to the failure to include the matters raised by Objections 4 and 6 in the scope of the hearing along with Objection 5. Furthermore, while the polls were still open, the union observer at the election said that he had a car- 214 NLRB No. 101 SYSCO FOODS SERVICES, INC. 765 bine in his vehicle and he threatened that he would in this atmosphere and with this conduct by an offi- kill the Employer's observer and kill the Employer's cial observer of one of the parties, whether or not president. I am unwilling to issue a Board certifica- anyone voted in the election after this incident. tion based on an election which has been conducted Accordingly, for all of the foregoing reasons, I would conduct a new election in this case.