Sugar Food, Inc

1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sugar Food, Inc and Teamsters, Chauffeurs, Ware- housemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Petitioner Case 31-RC-6480 gional Director's findings and recommendations, and finds that the election must be set aside and a second election held [Direction of Second Election omitted from pub- lication ] May 10, 1989 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS The National Labor Relations Board, by a three member panel, has considered objections to an election held December 11 and 12, 1988, and the Regional Director's report and recommendations on their disposition The election was conducted pursuant to a Stipulated Election Agreement ap proved on November 17, 1988 The tally of ballots shows 21 for and 29 against the Petitioner, with no challenged ballots The Board has reviewed the record in light of the exceptions and the brief,' has adopted the Re ' The Employer argued in its brief on exceptions that the election re suits should be certified or in the alternative a hearing conducted on the issues raised by its exceptions The Employer offered essentially two bases for its contentions First it argued that the Petitioner had waived its right to have an observer present during the polling as provided for in the stipulation concerning the conduct of the election The balloting took place in four sessions over 2 days Second the Employer contends that the union observer was able to fulfill his function although he was not stationed at the polling area throughout the last balloting session Based on this allegation the Employer argues that there was no material or prejudicial breach of the stipulation We have examined the facts alluded to in the Employers brief in the light most favorable to the Employer as excepting party We nonetheless affirm the Regional Directors holding that the election must be set aside The Employers brief on the waiver issue asserts that the Petitioner s agent announced prior to the first voting session that no union observer would be present The Employer however does not contend that the union agent stated explicitly that the Union would not have an observer at all four voting sessions or that it was seeking to negate the stipulation At best the statement of the Petitioner s agent-as recounted by the Em ployer-was ambiguous The Employer provided no other evidence of a waiver Because no waiver occurred the Regional Director was correct in ap plying the rule of Asplundh Tree Expert Co 283 NLRB 1 (1987) As in Asplundh the Board agent in this case erred in permitting the stipulation to be breached in a manner and at a time that made it impossible for the Petitioner to seek recourse for the changed conditions No additional showing of prejudice is required 293 NLRB No 123