B & B Better Baked Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1974

208 N.L.R.B. 493 (N.L.R.B. 1974)

B & B BETTER BAKED FOODS, INC.
B & B Better Baked Foods , Inc. and Amalgamated
Meatcutters and Butcher Workmen of North
America, Local 34, AFL-CIO, Petitioner. Case
3-RC-5810
January 17, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 3 on September 4, 1973, an election by
secret ballot was conducted on September 11, 1973,
among the employees in the unit described below. At
the conclusion of the election, the parties were
furnished with a tally of ballots which showed that of
approximately 70 eligible voters, 50 cast ballots, of
which 20 were fo - the Petitioner, 19 were against, and
11 were challenged. The challenged ballots were
sufficient in number to affect the results of the
election. Thereafter, the Petitioner filed timely
objections to the conduct of the election and 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 conducted an investigation
and, on October 30, 1973, issued and duly served on
the parties his Report on Objections and Challenges.
The Petitioner filed timely exceptions to 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 proceeding, the
Board finds:
1. The Emplcyer 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 labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute an appropriate unit
for the purposes of collective bargaining within the
meaning of the Act:
All productio i and maintenance employees em-
ployed by the Employer at 124 West Main Street,
493
Sherman, New York, excluding all office clerical
employees, professional employees, drivers,
guards and supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's report and the Petitioner's exceptions thereto,
and finds merit in certain of the Petitioner's
exceptions.
There were two voting sessions scheduled on the
day of election at the Employer's plant. The first
voting session was to begin at 7 a.m., following a
preelection conference at 6:30 a.m., and end at 8
a.m., and the second voting session was to begin at
3:30 p.m. and end at 4 p.m. The Regional Director
found that the Board agent charged with conducting
the voting sessions arrived at 7:40 a.m., so late as to
possibly disenfranchise at least two employees whose
shifts ended at 7 a.m. The Regional Director
therefore recommended that if the ballots of those
employees proved determinative after counting the
ballots to which challenges were overruled, the
election should be set aside and a rerun election held.
The Petitioner contends that the late arrival of the
Board agent so disturbed the laboratory conditions
necessary for the conduct of the election as to require
that the election be set aside and a second election
directed. We agree.
As we noted in Kerona Plastics Extrusion Company,
196 NLRB 1120, it is frequently impossible to
determine to what extent a substantial departure by
the Board agent from scheduled election voting
hours has affected the outcome of the ensuing
election. In this case, the votes of those possibly
excluded from voting could have been determinative.
Moreover, the ensuing votes may have been affected
by the conduct of the Board agent. To preclude such
occurrences as this, which cast doubt on the results
of elections which we are responsible for certifying,
and to carry out our responsibility for assuring
properly conducted elections' and maintaining our
own standards, we see no alternative but to set aside
this election and direct a second election. Kerona
Plastics, supra.
In view of our disposition as to this objection, we
need not reach the merits of the Petitioner's
remaining exceptions to the Regional Director's
report.
ORDER
It is hereby ordered that the election held on
September 11, 1973, be, and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I New York Telephone Co, 109 NLRB 788, 790
208 NLRB No. 73