Best Products Co.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 578 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Best Products Co., Inc. and United Food & Com-
mercial Workers, Local 428, AFL-CIO, Peti-
tioner. Case 32-RC-1575
28 March 1984
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board, by a three-
member panel, has considered an objection to an
election' held 3 June 1982 and the hearing officer's
report recommending disposition of same.
The Board has reviewed the record in light of
the exceptions and brief, and hereby adopts the
hearing officer's findings and recommendations. 2
'The election was conducted pursuant to a Stipulated Election Agree-
ment. The tally was 38 votes for, and 26 against, the Petitioner; there
were 7 challenged ballots, an insufficient number to affect the results.
I The Employer has excepted to certain credibility resolutions of the
hearing officer. It is the established policy of the Board not to overrule a
hearing officer's credibility resolutions unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Coca Cola Bottling Co. of Memphis, 132 NLRB 481, 483 (1961);
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no sufficient basis
for disturbing the credibility resolutions in this case.
The parties' stipulation (pre-printed NLRB Form) provided that
"[e]ach party hereto will be allowed to station an equal number of au-
thorized observers. .." During the preelection conference before the
first voting session, the Petitioner requested that the number of observers
be increased to two per party on the grounds that an additional observer
was necessary to enable the Petitioner to identify all the voters. The
Board agent granted the request, and requested the Employer to provide
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for United Food & Commercial
Workers, Local 428, AFL-CIO, and that it is the
exclusive representative of the employees in the
following appropriate unit:
All full-time and regular part-time employees
employed by the Employer at its 550 W. Ham-
ilton Avenue, Campbell, California facility; ex-
cluding all confidential employees, guards, and
supervisors as defined in the Act.
an equal number of observers. The Employer declined for several rea-
sons. In agreement with the hearing officer, we find that the instant facts
are clearly distinguishable from those in Summa Corp. v. NLRB, 625 F.2d
293 (9th Cir. 1980), where the Board agent allowed the union an addi-
tional observer without first notifying the employer.
Here, the question of the number of observers arose at the preelection
conference, and the Employer had sufficient time (15 to 30 minutes
before the first session, and several hours before the second session) in
which to secure additional observers if he so chose. The Employer did
not even attempt to do so. Futhermore, the parties' stipulation did not
specify the number of observers, but only provided that both parties
would have an equal number. The Board agent acted within her discre-
tion in allowing each party two observers. Contrary to his colleagues,
Member Hunter finds that the parties had an agreement that each would
have one observer, and that the Board agent breached the agreement.
Member Hunter finds, however, that the Employer has failed to show
that it was prejudiced or that the presence of the extra observer had any
impact on the election or that there was any material breach under the
circumstances. Member Hunter notes that the stipulation itself did not
limit the number of observers but just provided that both parties would
have an equal number. Thus, in Member Hunter's view, 15 to 30 minutes
was sufficient time for the Employer to secure an additional observer,
which the Employer refused to even attempt.
269 NLRB No. 103
578