Jobbers Meat Packing Co.

National Labor Relations Board - Board Decisions

Sep 9, 1980

252 N.L.R.B. 41 (N.L.R.B. 1980)

JOBBERS MEAT PACKING CO.
Jobbers Meat Packing Co., Inc. and Provision
House Workers Union Local 274, United Food
and Commercial Workers International Union,
AFL-CIO, Petitioner. Case 21-RC-16266
September 9, 1980
DECISION AND CERTIFICATION OF
REPRESENTATIVE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion' held on March 21, 1980, and the Regional
Director's report recommending disposition of
same. The Board has reviewed the record in light
of the exceptions and brief submitted by the Peti-
tioner, and hereby adopts the Regional Director's
findings and recommendations only to the extent
consistent herewith.
In his report, the Regional Director, inter alia,
recommended that the Employer's Objection 2 be
sustained and a new election be directed. 2 Objec-
tion 2 contends that eligible voters were disenfran-
chised because the Board agent started the election
approximately 2 hours later than the scheduled
time.
The Regional Director found that the Board
agent arrived and opened the polls 2 hours late be-
cause he became lost and had mechanical problems
with a GSA car en route. The investigation also
disclosed that one eligible voter was disenfran-
chised as a result of the late start of the election.
The voter, a truckdriver, left the Employer's facili-
ty to make his scheduled deliveries at or about 7
a.m. The election had been scheduled to begin at 6
a.m., but the polls did not open until 8 a.m.
In sustaining the Employer's Objection 2, the
Regional Director found that "the denial to an eli-
gible employee of his right to vote resulting from
the Board agent's failure to open the polls at the
scheduled time, constitutes a serious departure
from the high standards which the Board requires
in the conduct of its elections." Hence, he recom-
mended that a new election be conducted. We dis-
agree.
As the Regional Director correctly found, the
Board does not set 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 de-
' The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was: II for, and 7 against, the Pe-
titioner; there was I challenged ballot, an insufficient number to affect
the results of the election.
I In the absence of exceptions, we adopt, pro forma, the Regional Di-
rector's recommendation that the Employer's other objections be over-
ruled.
layed.3 The Board has set aside elections in such
circumstances, however, where it also was shown
that the votes of those possibly excluded could
have been determinative. 4 In addition, the Board
has set aside elections where the votes of those
possibly excluded could not have been determina-
tive, but where the record also showed accompa-
nying circumstances that suggested that the vote
may have been affected by the Board agent's late
opening or early closing of the polls 5 or it was im-
possible to determine whether such irregularity af-
fected the outcome of the election.6
Applying these principles here, we do not find
that the results of the election held on March 21,
1980, should be set aside. As indicated above, the
tally of ballots at the election showed 11 for, and 7
against, the Petitioner. There was one challenged
ballot. Thus, even if the challenged ballot and the
possibly excluded voter had voted against the Peti-
tioner, such votes would not, as the Regional Di-
rector found, have been determinative. In addition
we do not have, on the record now before us, any
evidence, or allegations, that the Board agent's late
openings of the polls affected the outcome of the
election.7 Hence, we see no reason to find, on the
record before us, that the possible exclusion of a
single employee-whose ballot could not have
been determinative-warrants setting aside the
election.
In sum, we find no merit in the Employer's Ob-
jection 2, and we hereby overrule it. Because the
Employer's other objections were similarly over-
ruled (see fn. 2, supra), we find no basis for setting
aside the election held on March 21, 1980. Accord-
ingly, as the Petitioner received a majority of the
ballots cast in the election, we shall issue a certifi-
cation of representative.
I Jim Kraur Chevrolet, Inc., 240 NLRB 460 (1979): see also Grants
Home Furnishings, Inc., 229 NLRB 1305, 1306, fn. 9 (1977).
We find Versail Manufacturing, Inc.. Subsidiary of Phillips Industries,
Inc., 212 NLRB 592 (1974). relied on by the Regional Director, to be
factually distinguishable. There the employee was prevented from voting
by his own actions. See also Gal Gas Redding, Inc., 241 NLRB 290
(1979).
4 The Nyack Hospital, 238 NLRB 257 (1978) (technical unit and service
and maintenance unit); B d B Better Baked Foods. Inc., 208 NLRB 493
(1974); Yerges Van Liners Inc., 162 NLRB 1259, 1260 (1967); G.H.R.
Foundry Division. The Dayton Malleable Iron Company, 123 NLRB 1707,
1709 (1959); and Alterman-Big Apple, Inc., 116 NLRB 1078, 1080 (1956).
5 The Nyack Hospital, supra (office clerical unit); Marvin Neiman d/b/a
Concourse Nursing Home, 230 NLRB 916 (1977); Vegas Village Shopping
Corporation, 229 NLRB 279 (1977)
6 Kerona Plastics Extrusion Company, 196 NLRB 1120 (1972).
7 Although the Employer's other objections alleged certain accompa-
nying circumstances, the Regional Director investigated and found no
merit in such objections The Employer has not filed any exceptions, or
cross-exceptions, to the Regional Director's recommendations on the
other objections See fn. 2, supra.
8 To find otherwise, in the circumstances here, would be to establish a
per se rule We have carefully avoided establishing such a rule which
could be easily abused.
252 NLRB No. 8
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Provision House Work-
ers Union Local 274, United Food and Commercial
Workers International Union, AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor Re-
lations Act, as amended, the said labor organization
is the exclusive representative of all the employees
in the following appropriate unit for the purposes
of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions
of employment:
All production and maintenance employees,
meatcutters, clean-up employees and truck-
drivers employed by the Employer at its facili-
ty located at 4820 Everett Avenue, Los Ange-
les, California; excluding office clerical em-
ployees, guards and supervisors as defined in
the Act.
42