Wanzer Dairy

WANZER DAIRY Wanzer Dairy Division of the Southland Corporation and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Local Union No. 371, Petitioner. Case 38-RC- 2057 September 29, 1977 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, PENELLO, AND MURPHY Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties, and approved by the Regional Director for Region 13 of the National Labor Relations Board on February 3, 1977, an election by secret ballot was conducted on February 23, 1977, among the employees in the stipulated unit. Following the election the parties were furnished with a tally of ballots which showed that of approximately three eligible voters, two cast ballots, of which one was for, and one against, the Petitioner. No ballots were ruled void nor were any challenged. The Petitioner filed a timely objection to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 13 conducted an investigation and, on June 14, 1977, issued and duly served on the parties his Report on Objection. In his report the Regional Director recommended that the Board set aside the election and that a new election be conducted. The Employer filed a timely request for review of the Regional Director's report. 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. Upon the entire record in this case, the Board finds: I. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes 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 Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. As stipulated by the parties, the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All full time drivers employed by the Employer at its Davenport, Iowa facility, but excluding 232 NLRB No. 105 guards, professional employees, supervisors, and all other employees. 5. The Board has considered the Regional Direc- tor's report, the Employer's request for review, 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 Petitioner's objection, the Regional Director concluded that under the circum- stances of this case the Board agent's decision not to extend the voting period beyond the scheduled time was an abuse of discretion and cause to set aside the election. We disagree for the reasons given below. Employee Bruce Blakley is a driver delivering milk products to stores within a 150-mile radius of the Employer's Davenport facility. On the day of the election, scheduled for 3:30 to 4 p.m., Blakley and another driver requested and were granted permis- sion by the Employer to leave on their routes at midnight, 2 hours earlier than usual, in order to leave a safe margin of at least 1-1/2 hours between their anticipated return and the election. However, Blak- ley did not arrive back at the facility until 5:20 p.m. and he missed the election, the polls having been closed promptly at 4 p.m. His lateness was due to an hour's delay early in the day during which he helped a truckdriver in distress and also to a severe storm which greatly slowed his return driving rate. It is not disputed that Blakley had begun his workday substantially earlier than usual in order to both perform his work and return in time for the election. Also undisputed is the conclusion that the factors preventing his timely return were beyond the control of the parties to this proceeding. The employer therefore relies on our decision in Versail Manufacturing, Inc., 212 NLRB 592 (1974), where we held that, in order to insure the prompt completion of representation proceedings and the finality of election results, elections will not be set aside unless an employee is prevented from voting by the conduct of a party or by any unfairness in the scheduling or mechanics of the election. The Regional Director and the Employer agree that the scheduled election time was fair and in accord with the agreement of the parties. However, they part company as to whether or not the Board agent properly exercised her discretion in closing the polls at the scheduled time of 4 p.m. The Employer argues that she did, the Regional Director that she did not. The Regional Director's position is that, because the circumstances surrounding Blakley's lateness were exceptional, because a request to keep the polls open and wait for Blakley had been made by Petitioner's secretary, George Mulvey, and because 631 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this was a small unit in which Blakley's vote could have been determinative, the Board agent had an obligation to explore with both parties their respec- tive positions on a time extension. We disagree with the Regional Director's analysis and his proposed test for abuse of discretion by a Board agent. It is standard Board policy to rely on the agent's discretion with respect to an extension of the voting period or on a written agreement of the parties in which the agent acquiesces.' The Board has never found that an agent has any responsibility for initiating discussions leading to such an agree- ment. The Board has sanctioned the casting of late ballots where the circumstances are unusual, the polls have not yet been closed, or the ballot box has not yet been opened. The time interval within which late voters have been permitted to cast ballots has not been more than a few minutes past the scheduled close of the election. 2 In this case the reasons for Blakley's absence are not at all unusual. Bad weather prevented him from arriving until well after 4 p.m. The storm was so bad that even if Blakley had not earlier in the day volunteered his help to another truckdriver he still would have missed the election. Also, the agent knew only that Blakley had called in to announce that he would be late. She had no indication when, if at all, he might arrive. He actually arrived an hour and 20 minutes after the polls had been closed and the votes counted. Regardless of the quality of Blakley's excuse, we find that the agent's I Glauber Water Works, 112 NLRB 1462(1955). 2 Hanford Sentinel, Inc., d/b/a Hanford Sentinel, 163 NLRB 1004 (1967); New England Oyster House of Cocoa Beach, Inc., 225 NLRB 682 (1976). 3 In two cases involving a two-person unit where only one vote was cast, a new election was ordered because the vote was not "representative." Kit Manufacturing Company, 198 NLRB I (1971), and Barnard Gold and Jack decision to close the polls at the agreed-upon time was an exercise of proper discretion. We also find no merit in the finding of the Regional Director that the Board agent's discretion should have been affected by the liklihood that Blakley's vote would have been determinative in this small three-person unit. The board has not set precise standards with respect to the probability of a late voter's either creating or breaking a tie. We give special consideration to elections involving two or three eligible voters in which only one vote was cast, because of our concern that such vote is not representative. 3 Here, however, there were two votes cast in a three-person unit, a sufficient proportion to be representative, and, in any event, as stated in Piper Industries, Inc., Plastics Products Division, 212 NLRB 474 (1974), the Act does not provide for a quorum or any definite proportion of the eligible electorate as necessary for a valid election. Accordingly, we shall reverse the Regional Direc- tor's recommendation for a new election and certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Local No. 371, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that said labor organization is not the exclusive represen- tative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. Wasserman, Co-parners d/b/a Gold & Baker, 55 NLRB 591 (1945), 54 NLRB 869 (1944). The Board also set aside, for the same reasons, an election in a three-person unit where only one vote was cast. S. A. Kendall, Jr., et al., 41 NLRB 395 (1942). In Yerges Van Liners, Inc., 162 NLRB 1259 (1967), a new election was ordered in a two-person unit because the one late vote "could have affected" the election. 632