Recycle America

National Labor Relations Board - Board Decisions

Mar 8, 1993

310 N.L.R.B. 629 (N.L.R.B. 1993)

629
310 NLRB No. 94
RECYCLE AMERICA
1 See Recycle America, 308 NLRB 50 (1992).
2 That is not to say the Acting Regional Director may not have
had discretion, in some circumstances, to have declared the election
a nullity at an earlier stage, prior to the litigation in the unfair labor
practice case. See, e.g., Suprenant Mfg. Co. v. Alpert, 318 F.2d 396
(1st Cir. 1963). Here, however, the representation proceeding lay
dormant throughout the litigation of the allegedly objectionable con-
duct in the unfair labor practice case. Moreover, in his ruling, declar-
ing the election a nullity, the Acting Regional Director relied on the
actual findings made by the Board. In these circumstances, it seems
most appropriate to consider only the unfair labor practices found,
and not those earlier alleged and ultimately found nonmeritorious.
2 308 NLRB 50 (1992).
Waste Management of Santa Clara Co. Inc., d/b/a
Recycle America and Sanitary Truck Drivers
& Helpers Local 350, International Brother-
hood of Teamsters, AFL–CIO, Petitioner. Case
32–RC–3344
March 8, 1993
DECISION ON REVIEW, DIRECTION, AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Acting Regional Director’s Supplemental
Decision and Order. The request for review is granted
as it raises a substantial issue with respect to the Act-
ing Regional Director’s conclusion that, because the
Employer was found to have violated Section 8(a)(1)
of the Act during the critical preelection period, the
election should, per se, be declared a nullity. Pertinent
portions of the Acting Regional Director’s Supple-
mental Decision and Order are attached.
We find that although the unfair labor practice pro-
ceeding1 established that the Employer’s conduct vio-
lated Section 8(a)(1) in several respects, it did not es-
tablish that the conduct was sufficient to affect the re-
sults of the election. Thus, in the unfair labor practice
case, although it was found that the Employer’s parent
corporation’s human relations manager interrogated
and solicited grievances from an employee, and re-
quested the employee to campaign against the Union,
there was some testimony that the employee was a
known union supporter, only one employee was in-
volved, and the bargaining unit consisted of approxi-
mately 45 employees. There was no evidence of dis-
semination of the Employer’s remarks among other
members of the unit, and the last incident occurred ap-
proximately 1 month prior to the election. In these cir-
cumstances, we find the conduct insufficient by itself
to have affected the results of the election. See, e.g.,
Coca-Cola Bottling Co., 232 NLRB 717 (1977); Al-
lied-Signal, 296 NLRB 211 (1989). We therefore con-
clude that the ballots should be opened and counted.2
This, however, does not preclude either party from fil-
ing objections to the election at the appropriate time.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 32 shall, within 10 days from the date of this de-
cision, open and count the ballots, and shall thereafter
prepare and cause to be served on the parties a tally
of ballots, on which basis he shall issue the appropriate
certification.
ORDER
It is ordered that the matter is referred to the Re-
gional Director for Region 32 for further processing.
APPENDIX
REGIONAL DIRECTORS SUPPLEMENTAL
DECISION AND ORDER
Pursuant to a Decision and Direction of Election issued on
December 20, an election by secret ballot was conducted on
January 25, 1991, in a unit of all full-time and regular part-
time employees engaged in the pick up and processing of re-
cyclable materials, including truck drivers, mechanics, and
plant processing employees, employed at the Employer’s fa-
cility located at 1140 Cambell Avenue, San Jose, California;
excluding all office clerical employees, guards, and super-
visors as defined in the Act. Due to the pendancy of the un-
fair labor practice charge in related Case 32–CA–11622, the
ballots were impounded at the conclusion of the election.
Following an investigation of the aforementioned unfair
labor practice charge, the undersigned issued complaint, al-
leging, inter alia, that the Employer had violated Section
8(a)(1) of the Act by engaging in conduct designed to inter-
fere with the freedom of employees to fairly choose their
bargaining representative. Following a hearing on July 12,
1991, the administrative law judge issued a decision on De-
cember 27, 1992, in which he found that the Employer had
violated Section 8(a)(1) of the Act. Thereafter, on July 28,
1992, the National Labor Relations Board (the Board) issued
a Decision and Order,2 wherein it adopted the Order of the
administrative law judge. The Employer’s conduct which was
found by the Board to have violated Section 8(a)(1) of the
Act occurred during the critical preelection period.
Accordingly, IT IS HEREBY ORDERED that the election be,
and it hereby is, declared a nullity.