Asplundh Tree Expert Co.

ASPLUNDH TREE EXPERT CO. 1 Asplundh Tree Expert Co. and Teamsters Union Local No. 957, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 9-RC-14834 DECISION AND DIRECTION OF SECOND ELECTION 23 February 1987 By MEMBERS JOHANSEN, BABSON, AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered objections to an election held 16 January 19861 and the hearing of- ficer's report recommending disposition of them.2 The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 73 for and 93 against the Petitioner, with I chal- lenged ballot, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief, has adopted the hearing officer's findings and recommendations, and finds that the election must be set aside and a second election held. In adopting the hearing officer's recommenda- tion that the election be set aside, we agree with the conclusion that a material or prejudicial breach of the election stipulation occurred, preventing the holding of a fair election; The stipulation provided that "Each party hereto will be allowed to station an equal number of authorized observers ... at the polling places during the election . . . ." At no time prior to the day of the election was the Peti- tioner informed that the Employer would be sta- tioning more than one election observer at any of the three polling places used in the election.3 The Petitioner first learned' of the Employer's intention to use two observers at one of the polling places when its business representative arrived at the site in question, and discovered 15 to 30 minutes before the polls opened that the Employer had two ob- servers at that location.4 When the business repre- sentative protested the fact that the Employer had stationed a second observer at this site, the Board agent merely stated that the Board agent in charge of the election was at another polling site and that the Petitioner could file an objection if he objected to the extra observer. On this evidence, we find that the Petitioner was not "allowed to station an equal number of author- ized observers . . . at the polling places during the election," as provided in the stipulation, and that this breach was sufficiently material or prejudicial to require the setting aside of the election.5 We find the instant case distinguishable from Best Products Co., 269 NLRB 578 (1984), affil. 765 F.2d 903 (9th Cir. 1985), in that the objecting party there was informed approximately 15 to 30 minutes prior to the opening of the polls that it could select an additional observer but declined to do so. Al- though here, too, the Petitioner's business repre- sentative learned some 15 to 30 minutes before the election that the Employer would use a second ob- server at one of the sites, he was only offered the recourse of filing an objection. He was not offered the option of seeking to obtain a second observer for the Petitioner, and he could reasonably have believed that the only course of action mentioned to him-filing an objection-was all that was af- forded to him under the circumstances.6 Accord- ingly, we shall order that the election be set aside and a new election conducted. [Direction of Second Election omitted from pub- lication.] ' All dates refer to 1986. 2 On 18 July,this three-member panel issued an unpublished Decision and Order, adopting the Regional Director's 6 February recommendation that Objections 1, 3, and 4 be overruled in the absence of exceptions and remanding the case to the Regional Director for a hearing on Objection 2. 5 The Board's Regional Office had sent to the parties a cover letter attached to copies of the stipulation , indicating that each party was per- mitted one observer per polling place. 4 The Petitioner's agents earlier had arrived late for the preelection conference, which was held at another facility and polling site. There is no evidence that the Board agent remaining at this site informed them that more than one observer would be used at any of the polling places. 5 See Sonicraft, Inc., 276 NLRB 407 (1985). In reaching this conclu- sion, we do not find that the unbalance in the number of observers itself, independent of a material or prejudicial breach of the election stipulation, prevented the holding of a fair election. 5 See generally Westinghouse Electric Corp., 182 NLRB 481 (1970) 283 NLRB No. 7