Exhibitors Film Delivery & Sevice

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 320 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exhibitors Film Delivery & Service, Inc. and Local
Delivery Drivers Union, Petitioner. Case 17-
RC-8736
January 14, 1981
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered an objection to and
determinative challenges in an election held on
August 21, 1980,1 and the Hearing Officer's report
recommending disposition of same. The Board has
reviewed the record in light of the exceptions2 and
briefs and hereby adopts the Hearing Officer's find-
ings and recommendations. 3
' The election was conducted pursuant to a Decision on Review dated
January 22, 1980, in which the Board, Member Penello dissenting direct-
ed an election. 247 NLRB No. 66 (1980) The tally was three votes for,
and one against, the Petitioner. There were six challenged ballots, a suffi-
cient number to affect the results.
2 In the absence of exceptions thereto, we adopt, proforma, the recom-
mendation of the Hearing Officer to sustain the challenges to the ballots
of Lori Farmer and Richard Hedges and to overrule the challenge to the
ballot of Jim Cantrel.
In the Employer's "Answering Brief on Challenges to Persons and
Withdrawal of Objection to Conduct of Election" dated October 10,
1980, the Employer stated that, "The Employer hereby withdraws its ob-
jection to the conduct of the election filed with the Regional Director for
Region 17, on August 28, 1980." We will treat this statement as a motion
to withdraw the objection, and grant the motion.
' We have considered the Petitioner's contention that the Hearing Offi-
cer has evidenced a bias against the Petitioner's position We have con-
sidered the entire record and reject these charges.
DIRECTION
It is hereby directed that, as part of the investi-
gation to ascertain a representative for the purposes
of collective bargaining with the Employer, the
Regional Director for Region 17 shall, pursuant to
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, within 10 days
from the date of this Decision and Direction, open
and count the ballots of Jim Cantrell, Jim Lundin,
and Don Roberts and thereafter prepare and cause
to be served on the parties a revised tally of bal-
lots, including therein the count of these three bal-
lots. Thereafter, the Regional Director shall issue
the appropriate certification.
MEMBER PENELLO, dissenting:
I dissented from my colleagues' finding, in di-
recting the election herein, that the owner-operator
drivers in the petitioned-for bargaining unit are em-
ployees within the meaning of Section 2(3) of the
Act, Exhibitors Film Delivery & Service, Inc., 247
NLRB No. 66 (1980). For the reasons stated in my
dissenting opinion, I would have found that these
drivers are independent contractors and, therefore,
I would have dismissed the petition. Inasmuch as I
would not have directed the election, I will not
consider the merits of exceptions to the Hearing
Officer's report on objections. Accordingly, I dis-
sent from my colleagues' findings herein.
254 NLRB No. 34
320