V.I.P. Limousine, Inc.

V I P LIMOUSINE V.I.P. Limousine , Inc. and Robert P. Marlin, Peti- tioner and Local 145, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 39-UD-15 28 February 1985 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 1 dated 13 January 1983, a deauthorization election was conducted by secret ballot on 11 February 1983. Following the election, the parties were furnished a tally of ballots which showed that of the approxi- mately 89 eligible voters, 37 voted for and 30 voted against rescinding the authority of the Union to require, under its agreement with the Employer, that membership in the Union be a condition of employment. On 16 February 1983 both the Employer and the Petitioner filed timely objections to conduct affect- ing the results of the election. The objections al- leged that a severe snowstorm developed during the polling period which prevented a substantial number of eligible voters from reaching the polls and, therefore, the election should be set aside. Pursuant to National Labor Relations Board Rules and Regulations, the Acting Regional Director conducted an investigation. On 14 March 1983 he issued a supplemental decision in which he over- ruled the Employer's and Petitioner's objections, and certified that a majority of employees eligible to vote did not vote for withdrawal of the Union's authority to make a union-security agreement. Thereafter, in accordance with Section 102.67 of the Board's Rules and Regulations, the Employer filed a timely request for review of the Acting Re- gional Director's supplemental decision on the ground that his refusal to set aside the deauthoriza- tion election raises a substantial question of law and policy. The Board, by telegraphic order dated 12 Sep- tember 1983, granted the request for review. Thereafter, the Employer filed a brief on review. The Board has considered the entire record in this case with respect to the issue under review, in- cluding the Employer's brief on review, and finds merit in the Employer's objection. The Employer operates a limousine service in the New York met- ropolitan area. A deauthorization election was scheduled for 11 February 1983 in a unit of the Employer's drivers at its Stamford, Connecticut fa- cility. On the day of the election, the polls were 641 open from 12 noon to 9 p.m. to accommodate driv- ers on long trips and those who worked afternoon and evening shifts. During the afternoon a snow- storm developed which caused approximately 20 inches of snow to fall in and about the Stamford, Connecticut area making navigation of the roads extremely difficult, if not impossible. In its objection, the Employer claimed that the snow and the accompanying road conditions pre- vented many employees from voting. In support of this position, the Employer attached to its objec- tion and its request for review statements from 11 employees which allege, in essence, that the "bliz- zard" conditions caused many of them to be trapped in traffic and thus prevented them from, re- turning to the Employer's facility to vote in the election. In overruling the Employer's objection, the Acting Regional Director found that, despite the inclement weather, the polls were open for a sub- stantial period of time and that 75 percent of those eligible to vote were able to cast their ballots, a figure which constitutes a representative portion of the electorate. Moreover, even assuming that the problems created by the snowstorm prevented em- ployees from voting, such circumstances were "not at all unusual," and were beyond the control of the parties. Accordingly, relying on Wanzer Dairy, 232 NLRB 631 (1977), and Versail Mfg., 212 NLRB 592 (1974), the Acting Regional Director found no valid basis for setting aside the election. We dis- agree. The Board is responsible for establishing the proper procedure for the conduct of its elections. In carrying out this responsibility, a primary con- cern of the Board is whether employees are given a sufficient opportunity to vote.' While the Board is not required to guarantee that every voter is able to get to the polls, when it is alleged that numerous employees were prevented from voting, the Board must assess whether the particular circumstances so affected a sufficient number of ballots as to destroy the requisite laboratory conditions under which elections must be conducted. If there is a reasona- ble possibility that this occurred and a determina- tive number of votes are called into question, to maintain the Board's high standards, the election must be set aside. Here, it is undisputed that a severe 20-inch snow- storm occurred in and around the election site during the polling period. The snowstorm which reached blizzard proportions affected the electorate as a whole. A substantial number of employees did not vote in the election. In these circumstances, the ' Verges Van Liners, 162 NLRB 1259, 1260 (1967) 274 NLRB No. 90 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board has no alternative but to set the election aside. 2 The cases relied on by the Acting Regional Di- rector are distinguishable. In both Wanzer and Ver- sail, where the elections were not set aside, the issue presented was whether the absence of one employee from the polls due to inclement weather or personal business warranted a new election. Here, the issue is not the disenfranchisement of a single employee, but whether an unusually severe snowstorm wherein a considerable number of em- ployees did not vote is so disruptive of the entire election process that a new election must be con- ducted. Hence, the focus is not on the circum- 2 Whatcom Security Agency, 258 NLRB 985 (1981), Kerona Plastics Ex- trusion Co, 196 NLRB 1120 (1972), New York Telephone Co, 109 NLRB 788, 790-791 (1954) stances of why a particular individual was unable to vote, but instead on whether the election was conducted properly and in such a manner as to assure that all employees were given a sufficient opportunity to vote. We find that it was not.3 ORDER It is ordered that the election conducted on 11 February 1983 be set aside. [Direction of Second Election omitted from pub- lication.] 3 We realize that the absence of voters from the polls is particularly telling in a deauthorization election because a majority of those eligible to vote must vote for rescission of authority before a certification rescinding such authority will be issued See NLRB Casehandling Manual, Pt II, Representation Proceedings, Sec 11512 We emphasize however that our analytical focus is not only on the number of voters who did not partici- pate, but also on whether the election process itself has been disrupted Our analysis here would therefore apply to all types of Board elections.