Sugar Food, Inc

National Labor Relations Board - Board Decisions

May 10, 1989

293 N.L.R.B. 1008 (N.L.R.B. 1989)

1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sugar Food , Inc and Teamsters , Chauffeurs, Ware-
housemen, Industrial and Allied Workers of
America, Local 166, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , AFL-CIO, Petitioner
Case 31-RC-6480
gional Director's findings and recommendations,
and finds that the election must be set aside and a
second election held
[Direction of Second Election omitted from pub-
lication ]
May 10, 1989
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
The National Labor Relations Board, by a three
member panel, has considered objections to an
election held December 11 and 12, 1988, and the
Regional Director's report and recommendations
on their disposition The election was conducted
pursuant to a Stipulated Election Agreement ap
proved on November 17, 1988 The tally of ballots
shows 21 for and 29 against the Petitioner, with no
challenged ballots
The Board has reviewed the record in light of
the exceptions and the brief,' has adopted the Re
' The Employer argued in its brief on exceptions that the election re
suits should be certified or in the alternative a hearing conducted on the
issues raised by its exceptions The Employer offered essentially two
bases for its contentions First it argued that the Petitioner had waived
its right to have an observer present during the polling as provided for
in the stipulation concerning the conduct of the election The balloting
took place in four sessions over 2 days Second the Employer contends
that the union observer was able to fulfill his function although he was
not stationed at the polling area throughout the last balloting session
Based on this allegation the Employer argues that there was no material
or prejudicial breach of the stipulation
We have examined the facts alluded to in the Employers brief in the
light most favorable to the Employer as excepting party We nonetheless
affirm the Regional Directors holding that the election must be set aside
The Employers brief on the waiver issue asserts that the Petitioner s
agent announced prior to the first voting session that no union observer
would be present The Employer however does not contend that the
union agent stated explicitly that the Union would not have an observer
at all four voting sessions or that it was seeking to negate the stipulation
At best the statement of the Petitioner s agent-as recounted by the Em
ployer-was ambiguous The Employer provided no other evidence of a
waiver
Because no waiver occurred the Regional Director was correct in ap
plying the rule of Asplundh Tree Expert Co 283 NLRB 1 (1987) As in
Asplundh the Board agent in this case erred in permitting the stipulation
to be breached in a manner and at a time that made it impossible for the
Petitioner to seek recourse for the changed conditions No additional
showing of prejudice is required
293 NLRB No 123