Jobbers Meat Packing Co.

JOBBERS MEAT PACKING CO. Jobbers Meat Packing Co., Inc. and Provision House Workers Union Local 274, United Food and Commercial Workers International Union, AFL-CIO, Petitioner. Case 21-RC-16266 September 9, 1980 DECISION AND CERTIFICATION OF REPRESENTATIVE Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objections to an elec- tion' held on March 21, 1980, and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief submitted by the Peti- tioner, and hereby adopts the Regional Director's findings and recommendations only to the extent consistent herewith. In his report, the Regional Director, inter alia, recommended that the Employer's Objection 2 be sustained and a new election be directed. 2 Objec- tion 2 contends that eligible voters were disenfran- chised because the Board agent started the election approximately 2 hours later than the scheduled time. The Regional Director found that the Board agent arrived and opened the polls 2 hours late be- cause he became lost and had mechanical problems with a GSA car en route. The investigation also disclosed that one eligible voter was disenfran- chised as a result of the late start of the election. The voter, a truckdriver, left the Employer's facili- ty to make his scheduled deliveries at or about 7 a.m. The election had been scheduled to begin at 6 a.m., but the polls did not open until 8 a.m. In sustaining the Employer's Objection 2, the Regional Director found that "the denial to an eli- gible employee of his right to vote resulting from the Board agent's failure to open the polls at the scheduled time, constitutes a serious departure from the high standards which the Board requires in the conduct of its elections." Hence, he recom- mended that a new election be conducted. We dis- agree. As the Regional Director correctly found, the Board does not set aside an election based solely on the fact that the Board agent conducting the election arrived at the polling place later than scheduled, thereby causing the election to be de- ' The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was: II for, and 7 against, the Pe- titioner; there was I challenged ballot, an insufficient number to affect the results of the election. I In the absence of exceptions, we adopt, pro forma, the Regional Di- rector's recommendation that the Employer's other objections be over- ruled. layed.3 The Board has set aside elections in such circumstances, however, where it also was shown that the votes of those possibly excluded could have been determinative. 4 In addition, the Board has set aside elections where the votes of those possibly excluded could not have been determina- tive, but where the record also showed accompa- nying circumstances that suggested that the vote may have been affected by the Board agent's late opening or early closing of the polls 5 or it was im- possible to determine whether such irregularity af- fected the outcome of the election.6 Applying these principles here, we do not find that the results of the election held on March 21, 1980, should be set aside. As indicated above, the tally of ballots at the election showed 11 for, and 7 against, the Petitioner. There was one challenged ballot. Thus, even if the challenged ballot and the possibly excluded voter had voted against the Peti- tioner, such votes would not, as the Regional Di- rector found, have been determinative. In addition we do not have, on the record now before us, any evidence, or allegations, that the Board agent's late openings of the polls affected the outcome of the election.7 Hence, we see no reason to find, on the record before us, that the possible exclusion of a single employee-whose ballot could not have been determinative-warrants setting aside the election. In sum, we find no merit in the Employer's Ob- jection 2, and we hereby overrule it. Because the Employer's other objections were similarly over- ruled (see fn. 2, supra), we find no basis for setting aside the election held on March 21, 1980. Accord- ingly, as the Petitioner received a majority of the ballots cast in the election, we shall issue a certifi- cation of representative. I Jim Kraur Chevrolet, Inc., 240 NLRB 460 (1979): see also Grants Home Furnishings, Inc., 229 NLRB 1305, 1306, fn. 9 (1977). We find Versail Manufacturing, Inc.. Subsidiary of Phillips Industries, Inc., 212 NLRB 592 (1974). relied on by the Regional Director, to be factually distinguishable. There the employee was prevented from voting by his own actions. See also Gal Gas Redding, Inc., 241 NLRB 290 (1979). 4 The Nyack Hospital, 238 NLRB 257 (1978) (technical unit and service and maintenance unit); B d B Better Baked Foods. Inc., 208 NLRB 493 (1974); Yerges Van Liners Inc., 162 NLRB 1259, 1260 (1967); G.H.R. Foundry Division. The Dayton Malleable Iron Company, 123 NLRB 1707, 1709 (1959); and Alterman-Big Apple, Inc., 116 NLRB 1078, 1080 (1956). 5 The Nyack Hospital, supra (office clerical unit); Marvin Neiman d/b/a Concourse Nursing Home, 230 NLRB 916 (1977); Vegas Village Shopping Corporation, 229 NLRB 279 (1977) 6 Kerona Plastics Extrusion Company, 196 NLRB 1120 (1972). 7 Although the Employer's other objections alleged certain accompa- nying circumstances, the Regional Director investigated and found no merit in such objections The Employer has not filed any exceptions, or cross-exceptions, to the Regional Director's recommendations on the other objections See fn. 2, supra. 8 To find otherwise, in the circumstances here, would be to establish a per se rule We have carefully avoided establishing such a rule which could be easily abused. 252 NLRB No. 8 41 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Provision House Work- ers Union Local 274, United Food and Commercial Workers International Union, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Re- lations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: All production and maintenance employees, meatcutters, clean-up employees and truck- drivers employed by the Employer at its facili- ty located at 4820 Everett Avenue, Los Ange- les, California; excluding office clerical em- ployees, guards and supervisors as defined in the Act. 42