Jim Kraut Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1979

240 N.L.R.B. 460 (N.L.R.B. 1979)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jim Kraut Chevrolet, Inc. and Rick Hughes, Peti-
tioner, and Butte Teamsters Union Local No. 2, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent. Case 19 R D
1152
January 30, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PEN ELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion ' held on August 23, 1978, and the Acting Re-
gional Director's report recommending disposition of
same. The Board has reviewed the record in light of
the exceptions and brief submitted by the Union,2
and the panel hereby adopts the Acting Regional
Director's findings and recommendations, only to
the extent consistent herewith.
In his report, the Acting Regional Director, inter
alia, sustained the Employer's Objection I and di-
rected a second election.' Objection I was predicated
on the Board agent's starting the election approxi-
mately 1-1/2 hours later than the scheduled time.
The acting Regional Director's report shows that the
election was scheduled to be held between the hours
of 9 and 9:30 a.m. The Board agent arrived at the
Employer's premises approximately 1-1/2 hours after
the time the polls were scheduled to open. The Act-
ing Regional Director's report further shows that the
Board agent conducted the election and there was no
evidence that any employee was disenfranchised.
The Acting Regional Director found merit in the
Employer's Objection I because a "substantial devia-
tion from the announced voter hours . . . disturbs
the required laboratory conditions and 'it is frequent-
ly impossible to determine to what extent a substan-
tial departure by the Board Agent from scheduled
election voting hours has affected the outcome of the
ensuing election.'" The Acting Regional Director
predicated his finding on Board decisions in B & B
Better Baked Foods, Inc., 208 NLRB 493 (1974). and
The election was conducted pursuant to a Stipulation for (ertification
Upon (Consent Election. The tall was rive for, and one agaiunt. the I ni on
there was one challenged hallot, an in uifftlient numher Io affect the result,
of the election.
2 The Employer and the Petitioner did not file exceptions or briels
In the absence of exceptions. we adopt. rri fornma. the Acing Regional
Director's overruling of the Fnmploer's Objection 2
240 NLRB No. 65
Kerona Plastics Extrusion Company 196 NLRB 1120
(1972). We disagree.
We do not consider it warranted setting 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 delayed. In order to find such conduct objection-
able, we require also that the late arrival of the Board
agent caused, or may have caused, eligible voters to
be disenfranchised. See Grant's Home Furnishings,
Inc.. 229 NLRB 1305, 1306, footnote 9 (1977).
We note that the Board considered whether voters
were disenfranchised in both cases relied on by the
Acting Regional Director.4 In B & B Better Baked
Foods, it was shown that the late arrival of the Board
agent possibly disenfranchised at least two employ-
ees and that their votes could have been determina-
tive. Similarly, in Kerona, it was shown that employ-
ees waiting in line to vote may have been
disenfranchised when the Board agent closed one of
the two voting sessions 20 minutes early. In sharp
contrast to these two cases, there is no evidence that
any employee was disenfranchised here. Indeed, the
official tally of ballots served on the parties on Au-
gust 23, 1978, showed that the number of valid votes
counted plus the challenged ballot equaled the ap-
proximate number of eligible voters.
In sum, we find no merit in the Employer's Objec-
tion I and we hereby overrule it. Because the
Employer's other objection was similarly overruled
(see fn. 3, supra), we find no basis for setting aside
the election held on August 23, 1978. Accordingly, as
the Union received a majority of the ballots cast in
that election, we shall issue a certification of repre-
sentative.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Butte Teamsters Union
Local No. 2, affiliated with the International Broth-
erhood of Teamsters. Chauffeurs, Warehousemen
and Helpers of America, Independent, and that, pur-
suant to Section 9(a) of the National Labor Relations
Act, as amended, the said labor organization is the
exclusive representative of all the employees in the
following appropriate unit for the purposes of collec-
tive bargaining in respect to pay, wages, hours of em-
ployment, or other conditions of employment:
All sales employees and automobile servicemen
This question has also been examiined In a number of other Board deci-
siils. See. for example Ia './he :l .. I trira. 238 NI.RB 2s7 t1978).
where the record showed the suhbsiantli numbers of eligible voters aere
possibly disenfranchised by the agenl's late a irrival: (iI R imndri D)il-
on. li D loit l all/b'lh Iron (otlranl. 123 NRB 17107 11959'; Rtpial
Brl atnlir lirirnm ( ,so nril 19 NlR I 4 1954)
JIM KRAUT (CHEVROLET 461
employed by the Employer at its Butte. Mon-
tana, operation, excluding office and clerical
employees, confidential employees. administra-
tive personnel. professional employees. guards
and supervisors as defined in the Act, and all
other employees.