Servomation Corp.

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Servomation Corporation and Amalgamated Food & Allied Workers Union, Local 56, AFL-CIO, a/w Amalgamated Meat Cutters & Butcher Workmen of N.A., AFL-CIO, Petitioner. Case 5-RC-9526 October 14, 1976 DECISION AND CERTIFICATION OF RESULTS OF ELECTION By CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and ap- proved by the Regional Director for Region 5 of the National Labor Relations Board on November 12, 1975, an election by secret ballot was conducted in the above-entitled proceeding on December 18, 1975, under the direction and supervision of said Regional Director. The tally of ballots furnished the parties showed that, of approximately 25 eligible voters, 25 ballots were cast of which 11 were for the Petitioner, 11 were against the Petitioner, and 3 were chal- lenged. The challenged ballots were sufficient to af- fect the results of the election. Thereafter timely ob- jections to the election were filed by both the Petitioner and the Employer. In accordance with Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director completed an investigation of the objections and challenges and, thereafter, on February 4, 1976, issued and duly served on the par- ties his report on challenges and objections. In his report, the Acting Regional Director recommended to the Board that all three challenges be sustained; that the Petitioner's objection be overruled; and that the Employer's Objections 3 and 4 be sustained and that the election be set aside and a second election directed. Thereafter, the Employer filed timely ex- ceptions to the Acting Regional Director's report. 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 labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated and we find that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time food service employees employed by the Employer at its fa- cilities at Wesley College in Dover, Delaware, excluding college and high school student em- ployees, casual and temporary employees, confi- dential employees, office clerical employees, guards and supervisors as defined in the Act. 5. The Board has considered the Acting Regional Director's report, the Employer's exceptions thereto, and the entire record in this case and hereby adopts the Acting Regional Director's findings, conclusions, and recommendations only to the extent they are consistent with the following: We adopt the Acting Regional Director's findings and recommendations that Petitioner's objection be overruled and that the challenges to the ballots of Kevin Baker, Florence Glod, and Stephanie Smail be sustained in the absence of any exception thereto. However, we do not agree with the Acting Regional Director's action in refusing to permit the Employer to withdraw its objections and we consider such ac- tion to be an abuse of his discretion in the circum- stances of this case. Briefly, the facts show that the Employer advised the Acting Regional Director that, in the event a ma- jority of votes were not cast for the Petitioner, it wished to withdraw its objections. The Acting Re- gional Director thereafter sustained the challenges to the three disputed ballots and thus determined that a majority of votes had not been cast for the Petitioner. The Acting Regional Director, however, refused to accept the Employer's withdrawal of its objections. Instead, he utilized two of the Employer's objections as a basis for recommending-on yet another ground-that the election which the Employer had won be set aside. In Objections 3 and 4, the Employer alleged that an agent of the Petitioner, Dan Clark, was present in the voting area and was improperly campaigning during the period when the polls were open. The Act- ing Regional Director concluded that, while the evi- dence did not establish that Clark was an agent of the Petitioner, the parties had stipulated that Clark was a supervisor. Accordingly, the Acting Regional Director recommended setting aside the election on the basis of the presence of a supervisor in the voting area. 226 NLRB No. 66 SERVOMATION CORP. In our judgment, the Acting Regional Director's recommendation to set aside the election will not ef- fectuate the policies of the Act. At the present time neither party questions the validity of the election. Petitioner has filed no exceptions to the Acting Re- gional Director's adverse findings , and the Employer has requested that its previously filed objections be withdrawn. The parties are thus satisfied with the election results. It must not be forgotten that under the objections procedure the parties concerned are vested with the responsibility of deciding whether to contest the re- sults of an election. Thus, where no exceptional cir- cumstances appear, the Board has long held that in the absence of timely objections it is error for a Re- gional Director to consider whether a party's con- duct interfered with the election, even though he may have reason to believe that employee rights may have been violated.' Analogously, if after initially filing objections, a party changes its mind and no longer wishes to dispute- the election outcome, then the Board should not continue to expend its valuable time and resources absent` an overriding reason for doing so. We find no such overriding interest here. Assum- ing arguendo that a supervisor was present in the vot- ' See Walter E. Selck & Co., A Wholly-Owned Subsidiary of Giffin Indus- tries, Inc., 214 NLRB 653 (1974), and cases therein cited 421 ing area and was actively campaigning on behalf of the Petitioner, this means that a majority of the unit employees did not favor union representation even though one of their supervisors was encouraging them to do so. With the case in this posture, we think it highly unlikely that the results of the instant elec- tion incorrectly reflect the sentiments of the employ- ees, and in the absence of at the very least an objec- tion to this conduct by the Petitioner, we are unwilling to assume that such is the case. For the foregoing reasons we overrule the Acting Regional Director and accept the Employer's with- drawal of its objections. Since, in this posture, the record shows that Petitioner did not receive a majori- ty of the valid votes cast in the election and there is no conduct which warrants setting aside the election, we shall issue a certification of results of election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Amalgamated Food and Allied Workers Union, Local 56, AFL-CIO, a/w Amalgamated Meat Cutters and Butcher Workmen of N.A., AFL-CIO, and that said labor organization is not the exclusive representative of all the employ- ees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended.