Servomation Corp.

National Labor Relations Board - Board Decisions

Oct 14, 1976

226 N.L.R.B. 420 (N.L.R.B. 1976)

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Servomation Corporation and Amalgamated Food &
Allied Workers Union, Local 56, AFL-CIO, a/w
Amalgamated Meat Cutters & Butcher Workmen of
N.A., AFL-CIO, Petitioner . Case 5-RC-9526
October 14, 1976
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
By CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 5 of the
National Labor Relations Board on November 12,
1975, an election by secret ballot was conducted in
the above-entitled proceeding on December 18, 1975,
under the direction and supervision of said Regional
Director. The tally of ballots furnished the parties
showed that, of approximately 25 eligible voters, 25
ballots were cast of which 11 were for the Petitioner,
11 were against the Petitioner, and 3 were chal-
lenged. The challenged ballots were sufficient to af-
fect the results of the election. Thereafter timely ob-
jections to the election were filed by both the
Petitioner and the Employer.
In accordance with Section 102.69 of the Board's
Rules and Regulations, Series 8, as amended, the
Acting Regional Director completed an investigation
of the objections and challenges and, thereafter, on
February 4, 1976, issued and duly served on the par-
ties his report on challenges and objections. In his
report, the Acting Regional Director recommended
to the Board that all three challenges be sustained;
that the Petitioner's objection be overruled; and that
the Employer's Objections 3 and 4 be sustained and
that the election be set aside and a second election
directed. Thereafter, the Employer filed timely ex-
ceptions to the Acting Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated and we find that the fol-
lowing employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time food service
employees employed by the Employer at its fa-
cilities at Wesley College in Dover, Delaware,
excluding college and high school student em-
ployees, casual and temporary employees, confi-
dential employees, office clerical employees,
guards and supervisors as defined in the Act.
5. The Board has considered the Acting Regional
Director's report, the Employer's exceptions thereto,
and the entire record in this case and hereby adopts
the Acting Regional Director's findings, conclusions,
and recommendations only to the extent they are
consistent with the following:
We adopt the Acting Regional Director' s findings
and recommendations that Petitioner's objection be
overruled and that the challenges to the ballots of
Kevin Baker, Florence Glod, and Stephanie Smail be
sustained in the absence of any exception thereto.
However, we do not agree with the Acting Regional
Director's action in refusing to permit the Employer
to withdraw its objections and we consider such ac-
tion to be an abuse of his discretion in the circum-
stances of this case.
Briefly, the facts show that the Employer advised
the Acting Regional Director that, in the event a ma-
jority of votes were not cast for the Petitioner, it
wished to withdraw its objections. The Acting Re-
gional Director thereafter sustained the challenges to
the three disputed ballots and thus determined that a
majority of votes had not been cast for the Petitioner.
The Acting Regional Director, however, refused to
accept the Employer's withdrawal of its objections.
Instead, he utilized two of the Employer's objections
as a basis for recommending-on yet another
ground-that the election which the Employer had
won be set aside.
In Objections 3 and 4, the Employer alleged that
an agent of the Petitioner, Dan Clark, was present in
the voting area and was improperly campaigning
during the period when the polls were open. The Act-
ing Regional Director concluded that, while the evi-
dence did not establish that Clark was an agent of
the Petitioner, the parties had stipulated that Clark
was a supervisor. Accordingly, the Acting Regional
Director recommended setting aside the election on
the basis of the presence of a supervisor in the voting
area.
226 NLRB No. 66
SERVOMATION CORP.
In our judgment , the Acting Regional Director's
recommendation to set aside the election will not ef-
fectuate the policies of the Act. At the present time
neither party questions the validity of the election.
Petitioner has filed no exceptions to the Acting Re-
gional Director 's adverse findings , and the Employer
has requested that its previously filed objections be
withdrawn . The parties are thus satisfied with the
election results.
It must not be forgotten that under the objections
procedure the parties concerned are vested with the
responsibility of deciding whether to contest the re-
sults of an election . Thus, where no exceptional cir-
cumstances appear, the Board has long held that in
the absence of timely objections it is error for a Re-
gional Director to consider whether a party's con-
duct interfered with the election , even though he may
have reason to believe that employee rights may have
been violated .' Analogously , if after initially filing
objections , a party changes its mind and no longer
wishes to dispute- the election outcome , then the
Board should not continue to expend its valuable
time and resources absent` an overriding reason for
doing so.
We find no such overriding interest here. Assum-
ing arguendo that a supervisor was present in the vot-
' See Walter E. Selck & Co., A Wholly-Owned Subsidiary of Giffin Indus-
tries, Inc., 214 NLRB 653 (1974), and cases therein cited
421
ing area and was actively campaigning on behalf of
the Petitioner, this means that a majority of the unit
employees did not favor union representation even
though one of their supervisors was encouraging
them to do so. With the case in this posture, we think
it highly unlikely that the results of the instant elec-
tion incorrectly reflect the sentiments of the employ-
ees, and in the absence of at the very least an objec-
tion to this conduct by the Petitioner, we are
unwilling to assume that such is the case.
For the foregoing reasons we overrule the Acting
Regional Director and accept the Employer's with-
drawal of its objections. Since, in this posture, the
record shows that Petitioner did not receive a majori-
ty of the valid votes cast in the election and there is
no conduct which warrants setting aside the election,
we shall issue a certification of results of election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Amalgamated Food
and Allied Workers Union, Local 56, AFL-CIO, a/w
Amalgamated Meat Cutters and Butcher Workmen
of N.A., AFL-CIO, and that said labor organization
is not the exclusive representative of all the employ-
ees, in the unit herein involved, within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.