Goffstown Truck Center, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 2009

354 N.L.R.B. 359 (N.L.R.B. 2009)

354 NLRB No. 49
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Goffstown Truck Center, Inc. and Chauffeurs, Team-
sters and Helpers Local 633, a/w International
Brotherhood of Teamsters, Petitioner. Case 1–
RC–22272
July 21, 2009
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The National Labor Relations Board has considered
objections to an election held on December 12, 2008, and
the hearing officer’s report recommending disposition of
them.1 The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 26
for and 19 against the Petitioner, with no challenged bal-
lots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has decided to adopt the hearing
officer’s findings2 and recommendations only to the ex-
tent consistent with this Decision and Direction of Sec-
ond Election.
For the reasons set forth below, we find merit in the
Employer’s objections alleging that weather conditions
on the election date denied the employees an adequate
opportunity to vote, and that a determinative number of
eligible voters did not vote. Consequently, we shall di-
rect a second election.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
I. FACTS
The Employer provides school-bus service for the
Town of Londonderry, New Hampshire. The election
was conducted in a unit of school bus drivers at the Em-
ployer’s Londonderry facility. A severe ice storm hit
Londonderry the night before the election and persisted
throughout election day. As a result, downed trees and
fallen power lines laden with ice blocked or obstructed
many of Londonderry’s roads, including the two access
roads leading to the polling place.
Because of the severity of the ice storm, New Hamp-
shire’s Governor declared a state of emergency on the
morning of the election. The Governor urged citizens to
avoid unnecessary travel and to plan for prolonged power
outages. Londonderry’s schools were closed, and conse-
quently the employees’ work was cancelled. In addition,
the polling place lost its heat, electrical power, and tele-
phone service,3 and some employees lost those services
in their homes. Two days after the election, President
George W. Bush ordered Federal aid and mobilized the
Federal Emergency Management Agency (FEMA) to
supplement state and local response efforts. Thousands
of New Hampshire citizens, including some of the Em-
ployer’s employees, were without power for days as a
result of the storm.
Despite the storm, the Region proceeded with the elec-
tion as scheduled. As described above, the tally of bal-
lots favored the Union by seven votes. Nine employees
whose names appeared on an initial Excelsior list4 did
not cast ballots in the election.
II. THE HEARING OFFICER’S REPORT
The hearing officer recommended overruling the Em-
ployer’s election objections, citing Baker Victory Ser-
vices, 331 NLRB 1068, 1070 (2000). In Baker, the
Board stated that an election “should be set aside where
severe weather conditions on the day of the election rea-
sonably denied eligible voters an adequate opportunity to
vote and a determinative number did not vote.” The
hearing officer found that the ice storm on election day
was “severe and extraordinary,” “perhaps unprece-
dented,” and that a determinative number of eligible vot-
ers did not vote. However, rather than recommend that
the election be set aside on that basis, the hearing officer
proceeded to analyze the specific reasons why the nine
nonvoters did not cast ballots.5 Based on the nonvoting

3 Although not cited by the hearing officer, Gerald Sirois, the Em-
ployer’s manager, testified that telephones were out at the polling loca-
tion on December 12.
4 Excelsior Underwear, 156 NLRB 1236, 1239–1240 (1966).
5 The hearing officer stated that she might have recommended set-
ting aside the election, under Baker, supra, and V.I. P. Limousine, 274
NLRB 641 (1985), if the record had lacked an explanation for why the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
employees’ testimony and the parties’ stipulations, the
hearing officer found that at least four eligible employees
declined to vote for reasons other than the ice storm.6
Consequently, the hearing officer found that the ice
storm affected no more than five eligible employees, an
insufficient number to affect the election result, and that
a second election was not warranted.
III. DISCUSSION
Applying Baker, supra, it is clear that the New Hamp-
shire ice storm constituted a severe weather condition
that reasonably denied employees an adequate opportu-
nity to vote.7 And, as found by the hearing officer, a
determinative number of eligible voters did not vote.8
The issue before the Board is whether the hearing officer
erred by considering individual employees’ reasons for
not voting and by consequently concluding that the ice
storm did not affect a determinative number of eligible
employees. We find that the hearing officer improperly
relied on this evidence. In V.I.P. Limousine, supra, a
“severe weather” case, the Board explained that “the
focus is not on the circumstances of why a particular
individual employee was unable to vote, but instead on
whether the election was conducted properly and in such
a manner as to assure that all employees were given a
sufficient opportunity to vote.” Id. at 642. Thus, under
V.I.P. Limousine, the Board does not analyze employees’
individual reasons for not voting in an election, but rather
will set aside an election whenever severe weather rea-
sonably denied eligible employees an adequate opportu-
nity to vote and a determinative number did not vote. Cf.
G.H.R. Foundry Div., The Dayton Malleable Iron Co.,
123 NLRB 1707, 1709 (1959) (postelection statements of
employees regarding their voting intentions cannot be
used as a basis for determining whether to set aside elec-

nine employees did not vote. Because the record contained such evi-
dence, however, she decided that it should be considered in determining
whether the Employer’s objections had merit.
6 The hearing officer noted that one employee decided not to vote
“because she was torn and wanted to stay out of it,” another did not
vote because she did not expect to continue working for the Employer,
a third employee was in Florida, and a fourth employee was summoned
by his other employer, the fire department, to assist with emergency
operations associated with the storm.
7 In Baker, supra, the Board found that four feet of snow during the 2
weeks preceding the election, prompting a declaration of a state of
emergency, constituted severe weather conditions that reasonably de-
nied eligible employees an adequate opportunity to vote. In V.I.P.
Limousine, supra, the Board directed a second election because of a
severe 20-inch snowstorm, where a determinative number of eligible
voters did not cast ballots.
8 The Petitioner disputes the eligibility of only two of the nine em-
ployees whose names appeared on an initial Excelsior list. Thus, the
Petitioner concedes that seven eligible employees, a determinative
number, did not cast ballots. We need not and do not address the eligi-
bility of the two employees in dispute.
tions); Nyack Hospital, 238 NLRB 257, 259 (1978)
(Board has consistently adhered to an objective standard
that does not rely on after-the-fact statements obtained
from eligible voters as to the reasons why they did not
vote in an election).
Because the ice storm reasonably denied eligible em-
ployees an adequate opportunity to vote and a determina-
tive number did not vote, we shall set aside the election
and direct a second election.9
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,
including employees who did not work during that period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the election directed herein and who retained their em-
ployee status during the eligibility period and their re-
placements. Those in the military services may vote if
they appear in person at the polls. Ineligible to vote are
employees who have quit or been discharged for cause
since the payroll period, striking employees who have
been discharged for cause since the strike began and who
have not been rehired or reinstated before the date of the
election directed herein, and employees engaged in an
economic strike that began more than 12 months before
the date of the election directed herein and who have
been permanently replaced. Those eligible shall vote
whether they desire to be represented for collective bar-
gaining by Chauffeurs, Teamsters and Helpers Local
633, a/w International Brotherhood of Teamsters.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an

9 The Employer filed a motion to reopen the record to offer addi-
tional evidence in support of its severe-weather objection. Specifically,
the Employer seeks to introduce evidence to demonstrate that the Ex-
celsior list was amended prior to the election and that the bargaining
unit actually contains 55, rather than 54, eligible employees (i.e., that
10, rather than 9, eligible voters did not cast ballots). Having sustained
the Employer’s severe-weather objection on the current record, we find
it unnecessary to pass on the Employer’s motion. Likewise, we find it
unnecessary to address the Employer’s contention that the Region
engaged in objectionable conduct when it proceeded with the election.
GOFFSTOWN TRUCK CENTER, INC. 3
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.
Dated, Washington, D.C. July 21, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD