Central Distributors, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1983

266 N.L.R.B. 1021 (N.L.R.B. 1983)

CENTRAL DISTRIBUTORS
Central Distributors, Inc. and Truck Drivers, Ware-
housemen & Helpers Union Local No. 340, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 1-CA-19718 and I-RC-17384
21 June 1983
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 22 January 1982 Truck Drivers, Warehouse-
men & Helpers Union Local No. 340, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein the
Union, was certified in Case l-RC-17384 as the ex-
clusive bargaining representative of employees in a
unit of all full-time and regular part-time drivers,
warehousemen, wine packers, forklift driver, and
mechanic employed at Respondent's Lewiston,
Maine, location. Respondent refused to bargain
with the Union maintaining that the certification
was invalid. The Union consequently filed a charge
upon which the Regional Director for Region 1
issued a complaint alleging that Respondent had
violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, by its refusal to
bargain. Thereafter, the General Counsel filed a
Motion for Summary Judgment which was granted
by the Board on 16 September 1982.1
The Board has decided sua sponte to reconsider
its decision in that case as well as the underlying
representation case. It does so in light of the state-
ments issued by Respondent in support of its objec-
tion in Case l-RC-17384 and its response to the
Notice To Show Cause in the summary judgment
proceeding as well as the entire record in these
proceedings. 2
It has been and continues to be the policy of the
Board to evaluate alleged objectionable conduct in
representation elections by considering the circum-
stances of the election and attaching no importance
to events occurring subsequent to the election.s In
deciding the instant cases, the Board focused on a
postelection event and reached an outcome incon-
sistent with its long-standing policy. It is that in-
consistency which prompts this reconsideration.
On 11 September 1982, the day of the election, a
driver, Gerald Whalen, was disenfranchised when
1 263 NLRB 1106.
As discussed herein the Board has decided to reopen the proceedings
in Case I-RC-17384. Accordingly, in order to effectuate the purposes of
the Act and to avoid unnecessary costs and delay, Cases I-CA-19718
and I-RC-17384 are hereby consolidated.
s Farmers Rendering Ca, 115 NLRB 1014 (1956).
266 NLRB No. 177
he was delayed in the normal course of his duties
and was unable to return before the polls closed. In
its objections, the Employer sought to have the
election rerun as Whalen's vote was determinative.
Following the Regional Director's investigation
but prior to the issuance of his decision, Gerald
Whalen died. The Regional Director acknowl-
edged the legitimacy of the Employer's position,
but focusing on the identity of the disenfranchised
voter, he determined that the election results
should stand as Whalen himself could not cast a
ballot in a new election. The Board adopted the
Regional Director's report without comment, and
subsequently granted the General Counsel's Motion
for Summary Judgment. While the Board acknowl-
edged that in Yerges Van Liners, 162 NLRB 1259
(1967), and, more recently, in Glenn McClendon
Trucking Co., 255 NLRB 1304 (1981), in normal
circumstances an election must be rerun where a
voter is improperly disenfranchised, it found the
postelection death of the disenfranchised voter to
be controlling. However, this decision was incon-
sistent with the long-standing policy of refusing to
consider postelection events in the determination of
objectionable conduct.
The purpose of setting aside an improperly run
election is to give all the employees currently em-
ployed in unit positions an opportunity to vote,
whether for the first or second time. A change in
the identity of the eligible voters, whether by
virtue of turnover, layoff, discharge, or, as here,
death, merely affects the composition of the voting
group.4 It does not alter the fact that on the day of
the original election a voter was improperly disen-
franchised and thus the election result could not
stand. Thus, what happens to a disenfranchised
voter after the election is immaterial. 5 In this case,
therefore, although the deceased employee cannot
now vote, his replacement, if any, may vote and is
entitled to exercise the franchise.6
Accordingly, we shall rescind the Decision and
Order issued in Case l-CA-19718 and the Decision
issued in Case 1-RC-17384, revoke the Union's
Alterations or turnover in the employee complement after an election
cannot normally serve to affect an election result. See, for example, Orle-
ans Storage Ca, 123 NLRB 1757, 1758 (1959) (complete turnover in unit
after election but before certification cannot void election result).
As the court stated in NLRB v. New England Lithograph Ca, 589
F.2d 29, 37 (Ist Cir. 1978) summarizing Board law:
. . . what actually happens after the election is of minimal conse-
quence. The Board focuses on the period including the eligibility
date and the election date and bases its conclusion on that time span.
Post-critical date information cannot be used to color the facts of the
case as they stood on the critical date.
a In a rerun election, a new voting eligibility list based on a current
payroll is used, rather than the payroll used in the first election. See
Socony- Vacuum Oil Ca, 84 NLRB 969, 970 (1949).
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification in the latter case, and direct a second
election to be conducted therein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby rescinds the Decision and
Order issued in Case 1-CA-19718 and the Decision
issued in Case 1-RC-17384, and revokes the certifi-
cation of 22 January 1982 issued in Case l-RC-
17384.
IT IS FURTHER ORDERED that the election previ-
ously conducted in Case 1-RC-17384 on 11 Sep-
tember 1982 be, and it hereby is, set aside and that
a second election be held pursuant to the following
direction.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
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