Sugar Food, Inc.

National Labor Relations Board - Board Decisions

May 22, 1990

298 N.L.R.B. 628 (N.L.R.B. 1990)

628 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
May 22, 1990
DECISION AND CERTIFICATION OF
REPRESENTATIVE
By CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The National Labor Relations Board has consid-
ered objections to a second election held June 27
and 28, 1989, and the Regional Director's report
and recommendations on their disposition. (Perti-
nent portions of the report are attached.) The
second election, like the first, was conducted pur-
suant to the Stipulated Election Agreement.' The
tally of ballots shows 26 for and 15 against the Pe-
titioner, with 3 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the Regional
Director's findings and recommendations, and fords
that a certification of representative should be
issued.
1. We agree with the Regional Director that the
Employer's Objection 1 concerning the defaced
notice of election be overruled. We note, however,
that SDC Investment, 274 NLRB 556 (1985), cited
by the Regional Director to support his conclusion,
involved the use of altered Board documents or
facsimilies as campaign propaganda by parties to
the election. Here, an unidentified individual (or in-
dividuals) placed hand-drawn checkmarks and 'x"s
in the "yes" box of a sample ballot reproduced on
posted official Board notices. There is no basis for
attributing the marks to the Petitioner. Further, the
marks-large, wide, and disproportionate to the
material on the reproduced sample ballot-were
clearly not part of the official notices. Therefore,
employees viewing the defaced notices would not
likely be misled by this anonymous third-party con-
duct into believing that the Board favored the Peti-
tioner. See State Bank of India v. NLRB, 808 F.2d
526, 539-541 (7th Cir. 1986), cert. denied 483 U.S.
1005 (1987).
' The first election was held December 11 and 12, 1988. The tally of
ballots in the first election shows 21 for and 29 against the Petitioner,
with no challenged ballots The Petitioner filed objections to conduct af-
fecting the results of the election The Board adopted the Regional Di-
rector's recommendation that the Petitioner's Objection 2 be sustained
and that the election be set aside and a new election be conducted See
Sugar Food, Inc, 293 NLRB 1008 (1989).
2. We also agree with the Regional Director's
recommendation that Objection 2 be overruled.
The Employer contends that the election should be
set aside because the Board's Notices of Election
were not delivered to the Employer in a timely
manner and thus were not posted for 3 full work-
ing days as required by Section 103.20(a) of the
Board's Rules and Regulations. The Regional Di-
rector found that the Employer was estopped from
raising this argument pursuant to Section 103.20(c),
which states that an employer must inform the Re-
gional Office at least 5 working days before the
election that it has not received copies of the elec-
tion notice or it is estopped from objecting to the
nonposting of the notices. The Employer claims in
its exceptions, inter alia, that it should not be held
to Section 103.20(c) because the Regional Office
failed to apprise the Employer of the applicability
of this regulation before the second election. We
note, however, that the Employer knew of the ap-
plicability of Section 103.20 because it is undis-
puted that the Employer received a copy of Sec-
tion 103.20 from the Regional Office before the
first election in December 1988. The Board's elec-
tion procedures did not change between the elec-
tions and the record demonstrates that this Em-
ployer and its counsel were well aware of these
procedures. Accordingly, the Employer' s claims
that it lacked notice of the regulation and that it
believed that the "five day rule" did not exist be-
cause the Regional Director did not refer to it in
correspondence with the Employer are without
merit. We also find no merit in the Employer's reli-
ance on an alleged change in management as a
reason that it was unaware of the applicability of
Section 103.20(c).2
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Teamsters, Chauffeurs,
Warehousemen, Industrial and Allied Workers of
America, Local 166, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
2 The Employer also seems to argue that Sec 103 .20(c) should not be
given effect because the employees did not have sufficient notice of the
election, given that the election notices were not posted for a full 3 days
as required under Sec . 103 20(a). Consequently , the Employer contends
that it should not be estopped from raising the late receipt of the notices
for timely posting as an objection to the election There is no merit to
this argument Sec. 103.20(c) was promulgated to help assure that there is
adequate posting time for election notices and thus to reduce the number
of cases in which notice posting defects become a ground for upsetting
elections. To that end, responsibility was placed on the posting party, the
employer, to advise the Regional Office no later than 5 days before the
election that the notices had not been received Having failed to meet
that responsibility , an employer cannot be heard to complain that the
consequence of its failure gives it ground for protesting the conduct of
the election
298 NLRB No. 86
f
SUGAR FOOD 629
of America, AFL-CIO, and that it is the exclusive
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All warehouse persons, helpers, and drivers
employed by the Employer at its facility locat-
ed at 8784 Rochester Avenue, Rancho Cuca-
monga, California, excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
dence submitted by the parties and otherwise disclosed
by the investigation, and hereby issue this report thereon.
THE OBJECTIONS
Objections No. 1
The Board's Notices of Election were continually
marked or defaced from the time of their posting
and throughout the election, in such manner so as
to indicate that the Board favored the Union in the
election.
APPENDIX
SECOND REPORT ON OBJECTIONS
Pursuant to a petition filed on October 24, 1988, and a
Stipulated Election Agreement approved by the Region-
al Director, an election by secret ballot was conducted
under my direction and supervision on December 11 and
12, 1988, among the employees of the Employer in the
unit agreed appropriate.' After the election, each party
was furnished with a tally of ballots which showed that
of approximately 62 eligible voters, 50 cast ballots, of
which 21 were cast for the Peitioner, 29 were cast
against the Petitioner, 29 were cast the Petitioner, none
was declared void, and none were challanged.
On December 16, 1988, the Petitioner filed timely ob-
jections to conduct affecting the results of the election, a
copy of which was duly served on the Employer.
On January 27, 1989,2 I issued my Report on Objec-
tions recommending that Petitioner Objection No. 2 be
sustained and accordingly, the election of December 11-
12, 1988 be set aside and be re-run election ordered.3 On
May 10, the Board issued its Decision and Direction of
Second Election4 wherein it adopted my recommenda-
tions and directed that a second election be conducted
whenever the Regional Director deems appropriate.
Subsequently, a second election was conducted under
my direction and supervision on June 27-28, among the
employees in the unit agreed appropriate. After this elec-
tion, each party was furnished a tally of ballots which
showed that of approximately 54 eligible voters, 44 cast
ballots of which 26 were cast in favor of the Petitioner,
15 were cast against the Petitioner, 3 ballots were chal-
langed, and none were void. The challenged ballots were
insufficient in number to affect the results of the election.
On July 5, the Employer filed timely objections to
conduct affecting the results of the second election, a
copy of which was duly served on the Petitioner. Pursu-
ant to Section 102.69 of the Board's Rules and Regula-
tions, Series 8, as amended, after reasonable notice to all
parties to present relevant evidence, I have completed an
investigation of the objections, duly considered all evi-
' Included: All warehouse persons, heplpers, and dirvers employed by
the Employer at its facility located at 8784 Rochester Avenue, Rancho
Cucamonga, California.
Exlcuded : All office clerical employees , professional employees, guards
and supervisors as defined in the Act.
2 All subsequent dates are 1989 unless otherwise
8 As noted in my January 27, report, Petitioner withdrew its other ob-
jections, Objection Nos. 1 and 3.
4 293 NLRB 1008
In support of this objection the Employer has prof-
fered evidence from several witnesses. For reasons more
fully discussed in Objection No. 2 infra the Notices of
Election at issue herein were posted for the first time on
the afternoon of June 22, or on the morning of June 23.
The Employer's General Manager of the facility in-
volved in this proceeding, Thomas Earwood, asserts at
about 9:00 a.m. on June 24, he observed on set of No-
tices posted on the Employer's bulletin board and a
second set posted on the window of the break room.5
These locations are approximately 12 feet apart. All four
posted Notices contained an "X" in the "yes" box of the
sample ballot appearing thereon. Nor realizing that the
marking were inappropriate, he did nothing at that time.
On June 26, the General Manager asked the Office Man-
ager to replace the marked Notices with clean ones, and
later that day, approximately 1:00 p.m., he observed 2
clean sets of posted Notices, The following morning,
June 27, Earwood saw either a check mark or "X" in the
"yes" box some, possibly all, of the posted Notices.
Again, he asked the Officer Manager to replace the
marked Notices, and later that day saw clean Notices
posted.6 On the morning of the following day, June 28,
the General Manager again saw some Notices marked
with either an "X" or check mark in the "yes" box, the
eact number of which he cannot recall. He took the
marked Notices down, but does not remember if he had
clean ones posted in their place. It is noted that balloting
continued until 7:00 p.m. on June 28.
Tina Brake, the Employer's Office Manager provided
information which essentially is in accord with that sub-
mitted by Earwood. However, according to Brake, she
only replaced Notices posted on the bulletin board, and
on both the first and second occasions she replaced
marked Notices at Earwood's request, she recalls seeing
a mark in the "yes" box of the English Notice, but does
not recall whether the Spanish Notice had any markings.
Finally, Brake claims that on a third occasion she re-
placed Notices on the bulletin board art Earwood's re-
quest. As occurred previously, she observed a mark in
the "yes" box of the English Notice, but cannot recall if
the Spanish Notice was marked.
Thomas P. Randt, the Director of Employee Relations
for the parent corporation to Sugar Food, Inc., was also
presented as a witness in support of this objection. Randt
5 Notices in this election were provided in both English and Spanish.
A set of Notices refers to one in English and one in Spanish.
6 Earwood is uncertain if he saw four, or fewer clean Notices at this
time.
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was responsible for the employee relations function at
the facility involved herein during the two week period
prior to the election. Randt alleges that on June 23, he
observed a posted copy of the Notice of Election with
an "X" mark appearing in the "yes" box of the sample
ballot.
The final witness presented by the Employer is its fa-
cility Warehouse Manager, Steve Cameron. Cameron
claims that on June 22, he saw a check mark in the "yes"
box of the sample ballot portion of a Notice posted on
the bulletin board near the employee breakroom, and re-
moved it and immediately replaced it with another one,
presumably a clean copy. The following day, he saw an-
other posted Notice with a similar marking in the "yes"
box replaced it with a clean copy. A half hour later, the
ballot on the Notice was again marked in the "yes" box.
Cameron further claims that on June 24, 25, 26 and 27,
he observed posted Notices with check marks in the
"yes" box of the sample ballot.
The Employer has submitted four complete Notices of
Election which were posted at times during the days im-
mediately prior to the election and which contained
either an "X" or check mark in the "yes" box of the
sample ballot. An examination of the complete submitted
Notices discloses no other extraneous markings contained
thereon. Attached hereto as Appendix A are actual size
reproductions of the sample ballot portion of the submit-
ted complete Notices. Finally, it is noted that the Em-
ployer has furnished no evidence to indicate who is re-
sponsible for the markings placed on the sample ballots
described above.
The gravamen of the Employer's objection is its claim
that the above described continued and pervasive deface-
ment of the Board's official Notices of Election gave the
impression to eligible voters that the Board favored a
vote in favor of the Union in connection with the re-run
election, and therefore, in accordance with the Board's
decision' in SDC Investment, Inc., 274 NLRB 556 and
similar cases following thereafter, the instant election
should be set aside . The employer recognizes that while
some reported Board decisions deal with the improper
markings of sample ballots and Notices of Election by
"parties" to the proceeding, 7 an occurence not estab-
lished herein, it urges that the policy considerations
behind said precedent should be applied in circumstances
such as those present in the instant manner. Further, the
Employer argues that although the Board has been reluc-
tant to set aside elections based upon, what it (the Em-
ployer) describes as "isloated conduct of non-parties," an
apparent reference to situations involving improperly
marked Notices by persons unknown, the facts herein
which demonstrate an alleged organized and systematic
defacement and an employer's diligent efforts to maintain
the Board's neutrality, require a different result.8
7 Precedent cited by the Employer includes Mercury Industries, Inc.,
238 NLRB 896, and Rosewood Mfg Ca, 278 NLRB 722.
8 In support of this position , the Employer cites several cases which, it
is claimed , demonstrate that although the involved elections were not
aside notwithstanding marked Notice of Election and no evidence for re-
sponsibility, the Board's determinations were based primarily upon an
analysis of whether or not the defaced Notices were remedied in a timely
fashion by an Employer who used reasonable diligence with respect to
Upon careful review of the objection, I conclude that
the conduct at issue herein, does not warrant the setting
aside of the election. Initially, I note that without ques-
tion, the facts demonstrate that notwithstanding the Em-
ployer's good efforts in seeing to it that clean Notices of
Election remain posted, for portions of time on several
days immediately preceding the election, as well as on
the days of the election, Notices of Election with "X"
marks of check marks in the "yes" box of the repro-
duced sample ballot contained thereon were posted at
the Employer's premises . It is not known who is respon-
sible for this conduct.
The issues posed by this objection were the subject of
a recent objection filed by the Employer in the matter of
Dura Art Stone, A partnerhsip Between Two California
Corporations, 31-RC-6400, hereinafter referred to as
Dura Art Stone. In this matter, the Employer objected to
the fact that marks appeared in the "yes" box of the
sample ballot on posted Notices of Election. Attached
hereto as Appendix B [omitted from publication], is a
copy of the treatment of this objection in my unpub-
lished October 13, 1988 Report on Objections, Order Di-
recting Hearing and Notice of Hearing wherein I recom-
mended that said objection be overruled. Thereafter, the
Employer filed exceptions to, among other things, my
conclusion with respect to this objection. In its excep-
tions the Employer argued that the objection should be
found meritorious and the election set aside in accord
with the principle set forth in SDC Investment Inc.,
supra. On May 5, 1989, the Board issued its unpublished
Decision and Order Remanding Proceeding To Regional
Director in which it, in accord with my recommenda-
tion, inter alia overruled this Employer objection (desig-
nated Objection No. 2) without comment. A copy of this
unpublished Decision is attached hereto as Appendix C.
While I recognize that the facts of the instant case are
somewhat different from those present in Dura Art Stone,
the similarities between them are such that the same con-
clusion as to the merits of the instant objection is war-
ranted. Additionally, I note that the rationale for finding
the conduct at issue herein objectionable, is the possibili-
ty that the marked Notices gave employees the impres-
sion that the Board favored a vote for the Petitioner. Al-
though in the instant matter the facts appear to demon-
strate a systematic attempt by some person(s) to make
certain that the posted Notices always contained a mark
in the "yes" box on the sample ballot, and that to this
end marked Notices were posted for a significant period
of time on several occasions including the days of the
election, applying the test established in SDC Investment,
the problem. In one case cited by the Employer, Fry, Roofing Co., 105
NLRB 1297, the Board overruled the Employer's defaced Notice objec-
tion under circumstances where although aware of the marking's on the
Notice, the employer took no action to correct it However, in a second
case noted by the Employer, Duro Fitting Ca, 123 NLRB 1568, the
Board again overruled the Employer's defaced Notice objection, but in
this matter under circumstances where the Employer took measures to
correct the defect. More specifically the Employer in Duro obeserved
that the Notices were defaced the morning following their posting, imme-
diately notified the Regional Office of the occurence, followed the Re-
gional Office's instructions to remove the defaced Notice, and posted a
clean Notice it received from the Regional Office the following morning,
the day before the election.
SUGAR FOOD
Inc., I cannot reasonably conclude that employees were
led to believe that the Board favored a vote for the Peti-
tioner. In reaching this conclusion I note that during the
period of time Notices were posted, there were occasions
when clean Notices were displayed and occasions when
the marked Notices at issue herein were posted. Under
these circumstances, to find that the marked Notices had
tendency to mislead employees into believing the Board
favored the Peitioner in the instant election would re-
quire the conclusion that eligible voters reasonably be-
lieved that a government agent was constantly monitor-
ing the Notices to make certain the "X" or check mark
appeared in the "yes" box contained thereon. I am un-
willing to reach this conclusion. Rather, I find that in
these circumstances the eligible employees are more apt
to reasonably conclude that clean Notices provided by
the government were thereafter marked by some other
person, the facts as they occurred herein.9 Further, I
note that the nature of the markings appearing in the
"yes" box, large, wide, and disproportionate to the print-
ed material on the reproduced sample ballot, leave the
observer with the reasonable impression that said marks
were added to the posted Notice and not a part of it as
issued by the government.
Based upon the foregoing, I conclude that Objection
No. 1 is without merit and will recommend that it be
overruled.
Objection No 2
The Board's Notices of Election were not deliv-
ered to the 'Employer in a timely manner and there-
fore many eligible employees did not have sufficient
notice of the voting dates and times did not vote.
The gravamen of this objection is the Employer's
claim that the Board official Notices of Election were
not posted for the sufficient period of time required
under Section 103.20 of the Board's Rules and Regula-
tions . This fact, the Employer contends, resulted in many
eligible voters not having sufficient notice of the voting
times and dates and accordingly not coming to the polls
to vote. In view of the above, the Employer urges that
the instant election be set aside.
The investigation discloses that on Friday, June 16, the
Employer's attorney received the Regional Office's June
15, letter enclosing Notices of Election and indicating
inter alia , that 13 Notices were sent that date to the Em-
ployer's attorney first learned on June 21, while at the
Employer's premises, of the fact that Notices were not
received there by that date. Upon advising the Employ-
er's co-counsel of the fact, the co-counsel called the Re-
gional Office that same date and sought to speak with
the Board agent in charge of the scheduled election to
alert him to the non-receipt of the Notices. The Board
s My determination should not be interpreted to mean that in the in-
stant case, the Employer may have been wiser in not replacing marked
Notices when they were discovered. To the contrary, in my view the
Employer took the appropriate conduct, and thus removed the possibility
of a meritorious objection no matter the subsequent election results.
Indeed , had the circumstances of this case been the same except for the
fact that markings appreared in the "no" box of the posted Notices, I
would find no merit to a like objection filed by the Petitioner.
631
Agent was unavailable. Co-counsel asserts he left a mes-
sage for the Board Agent to return his call, but the call
was not returned that day. Co-Counsel further states he
made no attempt to speak with any other member of the
Regional Office staff in the absence of the Board Agent
assigned to the case at issue . Further, there is no evi-
dence that on any other day subsequent to the election
the Employer sought to contact the Regional Office
about the late receipt of Notices. In the late afternoon,
early evening of June 21, the Employer's attorney sent
the Notices he previously received from the Labor
Board to the Employer's premises by overnight deliv-
ery.10
On the following day, June 22, the Employer received
the Notices mailed to it by its counsel. On either June 22
or 23, the Employer received the Notices sent to it from
the Regional Office.1' The Employer's Director of Em-
ployee Relations states that on the afternoon of June 22,
he directed the Office Manager to post copies of the No-
tices on the bulletin board near the Employer's break-
room in the warehouse. The Office Manager asserts that
she believes she first posted the Notice on the afternoon
of June 22 or June 23.12
Finally, the Employer notes that included in the pack-
age of Notices it received from the Labor Board was a
copy of Section 103.20 of the Board's Rules and Regula-
tions. The Employer asserts that prior to the date of re-
ceipt of the Notices, neither its Director of Employee
Relations nor any other management employee had re-
ceived notice of this regulation.
Section 103.20 of the Board 's Rules and Regulations as
well as the Board's published Explanatory Statements
with respect to this rule are reproduced in their entirety
as Appendix D [omitted from publication], attached
hereto. The instant election commended at 11:00 a.m. on
June 27. To be timely posted pursuant to the Board's
rule, Notices of Election has to be posted no later then
12:01 a.m. June 22. As the Notices were not timely
posted, at first blush, it would appear that in accord with
Section 103.20(d) of the Board's rules, the instant elec-
tion should be set aside. However, upon due consider-
ation of all of the circumstances present herein, I con-
clude that pursuant to Section 103.20(c) of the Board's
rules, the Employer' is estopped from objection to the un-
timely non-posting at issue herein.
10 As more fully discussed infra, forwarding the Notices on June 21,
by overnight courier could not have resulted in their receipt at the Em-
ployer's premises at a time when they could have been posted in a
manner fully in accord with Section 103 .20 of the Board's Rules and
Regulations. To be timely, the Notices had to be posted no later than
12:01 a.m., June 22. Counsel for the Employer notes that on June 21, the
question of whether the Notices he received could have been delivered
to the Employer's premises that same day by a "same day" courier serv-
ice, a member of the law firm's staff, or a member of the Employer's
staff, was not considered. It is noted that the attorney 's office is approxi-
mately 55 miles ' from the Employer's premises involved herein.
1I The evidence is unclear whether the mailing from the Regional
Office was 'received at the Employer's premises on June 22 or 23. In
view of my discussion of this objection infra, the exact date of receipt of
Notices by the Employer-June 22 or 23-is not important to discern.
E2 The Employer's warehouse manager asserts he saw the Notices
posted on June' 22. In view of my discussion of this objection infra, it is
not important to discern whether the Notices were first posted on June
22 or June 23.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Assuming arguendo the accuracy of all of the facts
provided by the Employer I conclude that pursuant to
Section 103.20(c) of the Board's rule, the Employer is
conclusively deemed to have received copies of the No-
tices for posting at a time when they could have been
timely posted, is responsible for the failure to post the
Notices in a timely fashion and thus is estopped from ob-
jection to the untimely non-posting. To be relieved of
the conclusion that it received the Notices on a date
when they could be timely posted, under circumstances
where no such receipt occurred, the Employer would
have had to adivse the Regional Office of the non-re-
ceipt of Notices no later than 12:01 a.m., June 20. The
Employer did not meet this deadline. Indeed, at no time
prior to the election did the Employer attempt to bring
to the attention of the Regional Office the election notice
problem invovled herein. The Employer claims that an
attempt was made to contact the Board Agent involved
in this case on June 21. Notwithstanding the fact that
this attempt was beyond the deadline noted above, I do
not view this effort as a bona fide attempt to notify the
"Regional Office" within the meaning of Section
103.20(c) of the Board's rule. Failing to reach the Board
Agent, it appears that the Employer made no attempt to
contact the Board's Agent's supervisor, the Region's
Election Unit, the Assistant to the Regional Director, or
myself, either by telephone or in a writing messengered
to the Regional Office to alert the Regional Office to the
Notice problem. Had the Regional Office been alerted to
the Notice problem on June 21, the undersigned no
doubt could have seen to it that Notices were delivered
to the Employer by 12:01 a.m., June 22, 1989, or have
exercised his discretion to delay this directed election
notwithstanding the fact that the Employer's notice to
the Regional Office was technically untimely. Further, as
noted supra 'at footnote 10, it appears that the Employer
could have posted the Notices in a timely manner had it
made arrangements to have them delivered on June 21,
to its place of business from its counsel's office.
In its position statement, the Employer notes Section
103.20(c) of the Board's rule but argues that for a
number of reasons present in this matter said provision
should not apply in this situation. The reasons cited by
the Employer are, its lack of Notice of the regulation, its
assertion that it was led to believe no "five day rule" ex-
isted as the Board Agent's letter of June 14, to be dis-
cussed infra, noted only that Notices has to be posted for
3 days prior to the election and made no mention of the
"5 day rule rule," and the Employer's reasonable belief
that Notices had been received on time at the company
in view of Counsel's June 16 receipt of the letter of June
15, indicating a "co" to the company. In summary, the
Employer argues that it took "every conceivable action
to remedy the problem and should not be estopped from
objecting to the late Notices." Upon review of the
above, I reject the Employer's arguments.
In the published Explanatory Statements accompany-
ing Section 103.20 of its rules, the Board expressed its
concern with respect to adequately informing empolyers
of thier notice posting obligations. To address this
matter, the Board directed that employers should receive
two written notifications of their notice posting obliga-
tion during the processing of a representation case. The
first noification is to be included in the cover letter ac-
companying service of the petition, and the second re-
minder is to be made at the time either a Decision and
Direction of Election or approved election agreement is
mailed to the Employer. In the instant matter, the Octo-
ber 25, 1988 cover letter accompanying service of the
petition makes specific reference to the Board's notice
posting rule in the second paragraph of page 2, and in-
cluded a copy of the Board's rule in its entirety. A copy
of the October 25, 1988 letter is attached hereto as Ap-
pendix E [omitted from publication]. Subsequent to Oc-
tober 25, 1988, it appears that the Regional Office ne-
glected to provide the Employer with a second written
notification of its notice-posting obligations as contem-
plated in the Board's published Explanatory Statements.
In a communication of November 17, 1988 in connection
with arrangements for the initial election in this matter
held on December 11 and 12, 1988, and in communica-
tions of June 5 and 14, in connection with arrangements
for the instant election, the Employer was reminded of
the requirement that "Notices must be posted for not less
than three working days prior to the election date."
Copies of these documents are attached hereto as Appen-
dix F [omitted from publication]. However, this com-
ment appears to fall short of the Board's requirement of
a second written notification. Notwithstanding the
above, the Regional Office's failure to provide the Em-
ployer with the required two written notifications of its
notice-posting obligations does not negate my conclusion
that the Employer is estopped from filing the instant ob-
jection. In this regard I note the following passage from
the Board's Explanatory Statements:
". . . This second reminder, sent at the time of the
Decision and Direction of Election or election
agreement, together with the first written/noti-
fication given in the cover letter accompanying the
service of the election petition, will help ensure that
employers are reminded of their notice-posting obli-
gations. The Board wishes to clarify, however, that
both of these reminders are merely an effort by the
Board to keep employers apprised of their obliga-
tions under the notice-posting rule and in no event
will the failure of the Board or its agents to provide
such notice be the basis of an election objection or
constitute a defense to an election objection based
on an employer's failure to post election notices or
otherwise perform its obligations as set forth in the
Board's rule . The rule itself is not amended or
changed in any way by this revision to the Supple-
mentary Information."
As the Board does not permit an Employer to use lack
of notice of the Board's rule as a defense to an election
objection based on its failure to perform its obligations
under Section 103.20 of the Board' s rules, it logically fol-
lows that such lack of notice cannot be used by an Em-
ployer to support a like objection it files.13
13 In Public Storage Inc, 295 NLRB 1034, the Board recently held that
failure of the Regional Office to advise a party filing objections of the
Continued
SUGAR FOOD
In view of the above, I conclude that the Employer
knew of the Agency's notice-posting requirements as
stated in Section 103.20 of its rules. Assuming arguendo
the Employer was never informed of these requirements
by the Regional Office, I further find that such conduct
does not excuse its failure to perform its obligations
under the Agency's notice-posting rule. Further, for
similar reasons, I find no merit to the Employer's argu-
ment that is was led to believe no 5 day rule existed as
the Board Agent's communication of June 14, referred
only to the 3 day posting rule. While the Board Agent's
communication of June 14, was incomplete, as noted
supra, this failure to fully notify the Employer of its obli-
gation under the Board's rules does not releive it of said
obligations.14 Additionally I find no merit to the Em-
ployer's assertion that it cannot be estopped from filing
the instant objection because its attorney, who received
copies of the Notices on June 16, with a cover letter in-
dicating other copies were sent to the Employer's prem-
ises, was under the reasonable impression said Notices
were delivered to the Company. It has long been the
policy of the Agency to furnish copies of election No-
tices to each party to the proceeding, each legal repre-
sentatives of the involved parties, as well as to the Em-
ployer for posting. Section 11314 of the Agency's Case-
handling Manual (Part Two) Representation Proceedings
provides for such conduct. In accord with well estab-
lished Regional Office practice, in the instant matter the
Notices were mailed to all parties and representatives on
the same date, June 15, and such fact was memorialized
on the letter of that same date addressed to the Employ-
er's counsel. Given the often present difference in dis-
tances between the Regional Office and the various' loca-
tions to which Notices are mailed, it, is not uncommon
for them to be received at these locations on different
dates. In the instant matter, the Employer's attorney's
office is located approximately 2-3 miles from the Re-
gional Office while the Employer's premises at which
Notices were to be posted is located approximately 55
miles from the Regional Office. It is well to understand
that among the principal reasons for forwarding copies
of Notices to the parties and their legal representatives is
to afford them an opportunity to check their accuracy
and to serve as a reminder to the legal representatives of
the posting requirement and the need'to make certain it
is appropriately met. Based upon the above analysis, I
conclude that while the contents of the Board's June 15,
communication may have led the Employer's counsel to
reasonably conclude that Notices had been delivered to
the Employer for posting, given the routine nature of the
communication, the above described purpose of the com-
munication, the well known vagaries of mail delivery,
and the obligations placed upon the Employer by Sec-
requirements of Section 102.69 (a) of the Board's Rules does not relieve
said party of its responsibilities under the Rules.
14 It is possible that the Employer is argmng that although it never re-
ceived notice of the Board's notice-posting rule, it was independently
aware of its existence and contents. When it received the Board Agent's
June 14, communication, reciting only the 3 working day posting require-
ment, so the argument continues , the Employer was led to believe the 5
working day provision contained in Section (c) of the rule was no longer
in effect . Assuming this is one of the Employer's arguments , I find that it
is unpersuasive.
633
tion 103.20 of the Board's rules, counsel's conclusion
does not, in my view, exempt the Employer from the re-
quirements of Section 103.20(c) of the Board's rules. Ad-
ditionally, notwithstanding Counsel's conclusions as to
the delivery of Notices, I am unaware of any reason to
relieve the responsible official at the Employer's place of
business from the responsiblity of seeing to it that all re-
quirements of the Board's notice-posting Rules are
met. 1 s
As a final argument to support its position the Em-
ployer urges that Board precedent supports the conclu-
sion that the Notices involved herein were not posted for
a sufficient period of time thus warranting the setting
aside of the election. More specifically, the Employer
cites Thermalloy Corp., 233 NLRB 428 wherein it is as-
serted an election was set aside as Notices were only
posted for 2-1/2 days prior to the election, and Kilgore
Corp., 203 NLRB 118 wherein it is claimed an election
was set aside under circumstances wherein the Notices
were only posted for a 2 day period prior to the election.
As the cases cited by the Employer pre-date the adop-
tion of the Board's notice-posting rule, I conclude they
are no longer controlling. Without question, the Board
promulgated and implemented its notice-posting rule in
an effort to both make clear to parties their responsibil-
ities and obligations vis a vis notice-posting, and to elimi-
nate time consuming and unnecessary litigation. Indeed,
in Smith's Management Corporation, d/b/a Smith's Food
and Drug, Inc., 295 NLRB No. 105, the Board set aside
an election based upon objections filed by the Petitioner
labor organization under circumstances where notices
were posted for an appropriate period under the Board's
rule at 3 of the 4 voting locations, but for less than two
days prior to the election at the fourth voting location.
Additionally 30 of the 31 eligible voters employed at the
fourth voting location voted. In reaching its conclusion
the Board considered the Employer's argument concern-
ing its good faith and the number of employees who
voted, but concluded that said arguments, ". . . what-
ever their merit under case law prior to the Board's
adoption of this rule-do not constitute grounds for ex-
cusing compliance with the rule and certifying the elec-
tion results." As this final argument proffered by the
Employer in effect, urges that the merits of the instant
objection be determined under standards and case law
prior to the adoption and implementation of Section
103.20 of the Board's rules, for the reasons cited supra I
conclude that it is without merit.16
15 It is further noted that in a Smith's Management Corporation, d/b/a
Smiths Food and Drug, Inc., 295 NLRE 983, the Board adopted Regional
Director's conclusion that based upon' objections filed by the Petitioner,
an election be set aside as the Notices were not posted for the minimum
amount of time required ' under the Board's rules. In this case, the facts
disclose inter ilia that although Notices were never received at one of 4
discrete voting locations, a copy of a letter , to the parties which accompa-
nied the election notices was sent to the Employer's counsel 7 working
days prior to a commencement of the election.
1e In accord with this recent Board decision and the rationale behind
the promulgation of the rule at issue herein, I conclude that the Employ-
er's arguments with respect to the number of eligible voters who cast bal-
lots and the possible effect of such a fact upon the election results are not
germane to my determination of the merits of this objection.
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In summary I find that notwithstanding the fact that
the Notices of Election at issue herein were not posted
for the minimum time required under Section 103.20(a)
of the Board 's Rules and Regulations, as the employer at
not time prior to election notified the)Regional Office of
its failure to receive copies of the Notices , it is responsi-
ble for the non-compliance with Section 103.20(a) noted
above. Thus in accord with Section 103.20 (c) of the
Board's Rules, the Employer is estopped from objecting
to the above described non-compliance . Accordingly, I
find Objection No. 2 to be without merit and will recom-
mend that it be overruled.
APPENDIX A
UNITED STATES OF AMERICA
r#1 ESTADOS UNIDOS DE AMERICA
NNational Labor Relations Board = NO
DO NOT SIGN THIS BALLOT. Fold and drop in ballot box.
NO FlRME ESTA PAPELETA. Dbblala y depb sltela en to urna electoral.
If you spoil this ballot return it to tt e Board Agent for a new one.
Si uosed dar)a esta papeleta devuelvala al Agente da la Junta y pidale una nueva.
SUGAR FOOD 635
UNITED STATES OF AMERICA
ESTADOS UNIDOS DE AMERICA
National Labor Relations Board
0
Junta Nacionat De Retacaones Del Traoalo
V
'
}
OFFICIAL SECRET BALLOT
PAPELETA SECRETA OFICIAL
For Certain EmDioyees of
Para Ciertos Empieaao
INC.
Do you wish to be es for pu s of collective bargaining by-
tcDesea us est4eAp e n rafos fines de negociar colectivamente por
` OF EURS , WARE HOUS&MEN , I( DUSPRIAL AND
ALLIED WORKERS OF AMERICA, LOCAL 166,
=NATIONAL BI I RHOOD OF TEAKS"rERS, CHAUFFEURS,
WAREHOUS N AND HELPERS OF AMERICA, AFL-CIO
MARK AN "X" IN THE SQUARE OF YOUR CHOICE
MARQUESE CON UN r'X" DENTRO DEL CUADRO DE SU SELECCION
`( E'S NO
S I - NO
DO NOT SIGN THIS BALLOT. Fold and drop in ballot box
NO FIRME ESTA PAPELETA . DOb!ela y depositela en la urna electoral.
If you Spoil this ballot return it to the Board Agent for a new one.
Si usted dana esta papeleta devu 6 lvala at Agente da la Junta y pidale una nueva.
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX C
Dura Art Stone , a Partnership Between California
Corporations and Amalgamated Industrial
Workers Union. Case 31-RC-6400
May 5, 1989
DECISION AND ORDER REMANDING
PROCEEDING TO REGIONAL DIRECTOR
Y CHAIRMAN STEPHENS AND MEMBERS JOHANSEN
AND HIGGINS
The National Labor Relations Board, by a three-
member panel, has considered objections' to an election
held August 26, 1988, and the Regional Director's report
recommending disposition of them. The election was
conducted pursuant to a stipulated election agreement.2
The tally of ballots shows 38 for and 29 against the
Union, with one challenged ballot.
The Board has reviewed the record in light of the ex-
ceptions and brief and has decided to affirm the Regional
Director's findings as modified below, and to adopt his
recommended Order, with the exception of a portion of
Objection 3, which we shall remand for a hearing.
In contending that Union conduct interfered with the
employees' ability to exercise a free and uncoerced
choice in the election the Employer asserts , inter alia,
that Regional Director resolved critical issues without
benefit of a hearing and thereby deprived it of due proc-
ess. In this regard, the Employer's brief notes factual dis-
crepancies between the Employer's affidavits and the Re-
gional Director's report concerning certain of the Objec-
tions. Even assuming arguendo that the facts are as al-
leged by the Employer, wer fmd, for reasons set forth
below, that the discrepancies are insufficient, singly or
together, to require a result different from the one
reached by the Regional Director. With Respect to a
portion of Objection 3, the Employer argues that on the
basis of facts assumed arguendo by the Regional Direc-
tor, objectionable conduct should be found. As also set
forth below, we find merit to that exception and remand
it for a hearing to determine whether the facts are as al-
leged.
1. A number of the discrepancies raised by the Em-
ployer pertain to allegations in support of Objection 1,
which alleges that employees had been subjected to
threats of violence. First, with respect to certain anony-
mous telephone calls to a unit employee, the Regional
Director found that there were two such calls, both oc-
curring outside the critical period, and he found that one
consisted only of "unintelligible nosies." The employee
' The Employer originally filled six objections , but withdrew one. The
Regional Director severed part of another objection and directed a hear-
ing on that issue alone. This hearing was held on October 28 and Novem-
ber 17, 1988. The Hearing Officer issued his report but revoked it by
order dated January 3, 1989.
2 The stipulated unit included all casting employees, finishing employ-
ees, mold makers , welders, forklift operators , drivers, housekeeping and
janitorial employees employed by the Employer at its facility located at
11010 Live Oak Avenue, Fontana, CA. Excluded were temporary and
casual employees, salesmen, managerial employees , office clerical em-
ployees, guards and supervisors
affidavit, proffered by the Employer, however, lists three
calls, two of them within the critical period, and indi-
cates that an intelligible message was delivered in all
three. There was neither any explicit nor implicit threat
of violence in any of the messages as reported. With
regard to another alleged threat to this employee, the
Regional Director found that, in a conversation concern-
ing pension funds ocurring before the critical period, a
fellow employee (not alleged to be an agent of the
Union) told her she should withdraw her pension funds
or "something" would happen. The employee's affidavit
indicates, however, that the conversation took place
within the critical period and that the alleged threat was
repeated twice. Finally, in another incident concerning
this same employee, the Regional Director stated,- inter
alia, that about a week before the election, when the em-
ployee was being driven to work, a car containing two
unknown persons pulled up next to the employee's car,
that the driver was brandishing what appeared to be a
gun, and that the driver or the passenger said, "You'll
pay for this." The employee's affidavit, proffered by the
Employer, differs insofar as it claims that a gu was defi-
nitely, not just apparently, in view, and the statement
made was, "You're going to get it."
We find that even assuming the facts as alleged by the
Employer, these allegations do not, either singly, or in
combination with other allegations made in support of
this objection, meet the test for objectionable third party
conduct by which they must be measured, in the absence
of a showing of union agency. Westwood Horizons Hotel,
270 NLRB 802, 803 (1984), and cases there cited. We
note, in particular, that the threat allegations in toto in-
volved only three employees3 out of a unit of 68 and
that in the most serious incident-the one allegedly in-
volving the gun-there were not even any reported
statements or gestures connecting it to the election.
2. We also fmd inconsequential the discrepancies be-
tween the Regional Director's findings and employee af-
fidavits in connection with part of Objection 3 (forgery
of Board publication); with objection 4 (electioneering);
and with Objection 5 (promise of benefit). The Regional
Director speaks only of the Employer's "taking ex-
cerpts" from the publication, while the Employer states
that the Union claims the Employer forged it. No evi-
dence of forged or altered Board document was present-
ed. The Regional Director stated that voters "may have
seen" Union representatives, who were standing in a
driveway about 75-80 feet away from the polling area,
engage in campaigning , while the witness affidavit states
that the employee witness did see the representatives.
Given the Union agents' location, however, their con-
duct was unobjectionable regardless of whether they
were seen by the voters.4 Concerning an alleged promise
3 The affidavit of a unit employee other than the telephone call reci-
pent states that fellow employee (not alleged to be a union agent) had
told him that some other person (unidentified) had said that the "Union
people" would bur up his car becuase he supported the Employer
4 This case is factually distinguishable from Pepsi-Cola Bottling Compa-
ny of Petersburg, Inc., 291 NLRB No 93, (Nov 4, 1988) in which a repre-
sentation election was set aside due to electioneering in a no-electioneer-
ing zone. In Pepsi-Cola , union supporters confronted voters entering the
Continued
SUGAR FOOD 637
by the Union that a laid-off worker would be reinstated,
the Regional Director reported the witness as placing the
incident "a few weeks prior to the election," whereas the
affidavit places it the day before. The alleged promise
was unobjectionable, however, regardless of the date,
since there was no showing that the Union could reason-
ably have been viewed as capable of carrying it out.
3. With respect to a portion of Objection 3, however,
we find that the allegations raise substantial and material
issues warranting a hearing. According to the Regional
Director's Report, an employee witness stated that at a
meeting attended by about 50 unit employees, a repre-
sentatives of the Union told the employees that the Na-
tional Labor Relations Board would not be able to help
voting area in such a way that voters were forced to "run a gauntlet" in
order to vote. Also in Pepsi-Cola, the election result was extremely close
By contrast, there is no contention in the present case that the two lea-
fletters occupied the no-electioneering zone , and the Regional Director
concluded that there is no evidence that they directed any attention to
those employees waiting to vote. Nor was the present election so close
that a change in one vote would have led to a different result.
employees who were not union members and, in particu-
lar, that the Board would not even give employees a
form for filing a complaint if they were not "union mem-
bers" and were not "represented by the Union's attor-
neys." Contrary to the Regional Director, we find that a
hearing is necessary to determine whether Union agents
made statements which could reasonably lead employees
to conclude that they must join the Union in order to
assure a favorable reception at the Board for any claims
they might have under the Act.
The Board having duly considered the matter:
IT IS ORDERED that Objections 1, 2, 4 and those por-
tions of 3 and 5 not sent to hearing be overruled and that
the remaining portion of Objection 3 be remanded for
hearing.
IT IS FURTHER ORDERED that this proceeding be re-
manded to the Regional Director who shall arrange and
issue notice of hearing on the portion of Objection 3 that
has not been overruled, and who shall take appropriate
action with regard to the allegations of Objection 5 that
remain outstanding.