Peoples Drug Stores, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1973

202 N.L.R.B. 1145 (N.L.R.B. 1973)

PEOPLES DRUG STORES, INC.
Peoples Drug Stores , Inc. Peoples Service Drug
Stores, Inc. and Retail Store Employees' Union,
Local 400 , Retail Clerks International Association,
AFL-CIO, Petitioner . Case 5-RC-8161
April 18, 1973
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 27, 1972, the Regional Director for
Region 5 issued a Supplemental Decision and Notice
of Hearing in the above-entitled proceeding in which
he overruled certain of the Petitioner's objections in
whole or in part, including objection.3, and directed
a hearing as to the remainder.' Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, the
Petitioner filed a timely request for review of the
Regional Director's Supplemental Decision on the
ground that in overruling objection 3 he departed
from officially reported precedent.
The National Labor Relations Board, by telegraph-
ic order dated January 3, 1973, granted the request
for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act,, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Petitioner's objection 3 alleges improper
conduct of the election based on the failure of the
Board agents to maintain custody of sealed ballot
boxes at all times during the course of the election.
During a traveling election conducted on October 5
and 6, 1972, nine voting teams, each consisting of a
Board agent and an observer for the Petitioner and
another for the Employer, were escorted in employer
vehicles driven by its employees to six to eight stores
twice on each day of the election. After the
completion of the first day's balloting, the ballot
boxes were sealed, the seals signed over by the
observers, and the boxes taken into custody by the
Board agent for the night.
When the voting teams assembled for the balloting
on the second day, the Board agents for two of the
teams placed the sealed and signed ballot boxes from
the previous day in the trunk of the escort vehicles
and took the driver's trunk key for the day. One of
the Board agents followed this procedure at the
' The tally of ballots for the election showed that of approximately 3,420
eligible voters, 3,066 cast ballots , of which 976 were for , and 1,608 against,
the Petitioner and 482 were challenged The challenges were insufficient to
202 NLRB No. 166
1145
request of the observers. Thus, the sealed ballot
boxes were placed in the teams' locked auto trunks
and left there until after the election. While the teams
conducted the polling at each of 12 to 16 locations
during the day, the driver escorts apparently re-
mained in the vehicles parked outside the store. The
polling at each location lasted approximately 10
minutes. During the dinner break that day, as on the
previous day, drivers accompanied the Board agent
and the observers.
At the conclusion of the balloting, the representa-
tives of both parties signed the certifications of
conduct of the election. The ballot boxes were
inspected by authorized representatives of the parties
and no question was raised concerning the security
of the ballot boxes.
In finding objection 3 to be without merit, the
Regional Director noted that during the election no
party objected to the security practices with regard to
the ballot boxes, that all parties inspected the boxes
prior to the count and did not question the integrity
of the seals, and that no party produced evidence
that the boxes had been tampered with.
The Petitioner contends that the Regional Director
used an improper standard for evaluating the
objection and further contends that had the proper
standard been applied, the facts here would have
compelled that the election be set aside. We agree
with the Petitioner that its objection relating to the
integrity of the election process requires an assess-
ment of whether the facts indicate that a reasonable
possibility of irregularity inhered in the conduct of
this election.2 However, we do not agree with it that
there was any reasonable possibility of irregularity in
the conduct of the election herein.
The ballot boxes left in the locked trunks of the
escort cars were sealed and the seals signed over. The
method of securing the ballot boxes by locking them
in the trunks of escort vehicles was apparently
decided upon shortly before being implemented. The
Board agents were away from the car only for short
intervals during the day. Although it is theoretically
possible that the drivers of the two vehicles happened
to have among their possessions that day duplicate
trunk keys and thus could have entered the locked
trunks, it is highly improbable that anyone would
have formulated such a plan on such short notice,
furtively obtained possession of the ballot boxes,
removed the seals, tampered with the ballots,
replaced the seals, and left no evidence of tampering.
For these reasons, we affirm the Regional Director's
conclusion to overrule objection 3.
affect the results
2 Polymers, Inc, 174 NLRB 282, enfd 414 F 2d 999 (C A 2, 1969), cert
denied 396 U S 1010
J
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall remand the case to the with his Supplemental Decision and Notice of
Regional Director for further proceedings consistent Hearing.
'Y U S GOVERNMENT PRINTING OFFICE 1974 0-506-114