Wanzer Dairy

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 631 (N.L.R.B. 1977)

WANZER DAIRY
Wanzer Dairy Division of the Southland Corporation
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Local Union No. 371, Petitioner. Case 38-RC-
2057
September 29, 1977
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and
approved by the Regional Director for Region 13 of
the National Labor Relations Board on February 3,
1977, an election by secret ballot was conducted on
February 23, 1977, among the employees in the
stipulated unit. Following the election the parties
were furnished with a tally of ballots which showed
that of approximately three eligible voters, two cast
ballots, of which one was for, and one against, the
Petitioner. No ballots were ruled void nor were any
challenged. The Petitioner filed a timely objection to
conduct affecting the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director for Region 13 conducted an
investigation and, on June 14, 1977, issued and duly
served on the parties his Report on Objection. In his
report the Regional Director recommended that the
Board set aside the election and that a new election
be conducted. The Employer filed a timely request
for review of the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
I. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. As stipulated by the parties, the following
employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
All full time drivers employed by the Employer at
its Davenport, Iowa facility, but excluding
232 NLRB No. 105
guards, professional employees, supervisors, and
all other employees.
5. The Board has considered the Regional Direc-
tor's report, the Employer's request for review, and
the entire record in the case and hereby adopts the
Regional Director's findings and recommendations
only to the extent consistent herewith.
In considering the Petitioner's objection, the
Regional Director concluded that under the circum-
stances of this case the Board agent's decision not to
extend the voting period beyond the scheduled time
was an abuse of discretion and cause to set aside the
election. We disagree for the reasons given below.
Employee Bruce Blakley is a driver delivering milk
products to stores within a 150-mile radius of the
Employer's Davenport facility. On the day of the
election, scheduled for 3:30 to 4 p.m., Blakley and
another driver requested and were granted permis-
sion by the Employer to leave on their routes at
midnight, 2 hours earlier than usual, in order to leave
a safe margin of at least 1-1/2 hours between their
anticipated return and the election. However, Blak-
ley did not arrive back at the facility until 5:20 p.m.
and he missed the election, the polls having been
closed promptly at 4 p.m. His lateness was due to an
hour's delay early in the day during which he helped
a truckdriver in distress and also to a severe storm
which greatly slowed his return driving rate.
It is not disputed that Blakley had begun his
workday substantially earlier than usual in order to
both perform his work and return in time for the
election. Also undisputed is the conclusion that the
factors preventing his timely return were beyond the
control of the parties to this proceeding.
The employer therefore relies on our decision in
Versail Manufacturing, Inc., 212 NLRB 592 (1974),
where we held that, in order to insure the prompt
completion of representation proceedings and the
finality of election results, elections will not be set
aside unless an employee is prevented from voting by
the conduct of a party or by any unfairness in the
scheduling or mechanics of the election.
The Regional Director and the Employer agree
that the scheduled election time was fair and in
accord with the agreement of the parties. However,
they part company as to whether or not the Board
agent properly exercised her discretion in closing the
polls at the scheduled time of 4 p.m. The Employer
argues that she did, the Regional Director that she
did not.
The Regional Director's position is that, because
the circumstances surrounding Blakley's lateness
were exceptional, because a request to keep the polls
open and wait for Blakley had been made by
Petitioner's secretary, George Mulvey, and because
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this was a small unit in which Blakley's vote could
have been determinative, the Board agent had an
obligation to explore with both parties their respec-
tive positions on a time extension.
We disagree with the Regional Director's analysis
and his proposed test for abuse of discretion by a
Board agent. It is standard Board policy to rely on
the agent's discretion with respect to an extension of
the voting period or on a written agreement of the
parties in which the agent acquiesces.' The Board
has never found that an agent has any responsibility
for initiating discussions leading to such an agree-
ment.
The Board has sanctioned the casting of late
ballots where the circumstances are unusual, the
polls have not yet been closed, or the ballot box has
not yet been opened. The time interval within which
late voters have been permitted to cast ballots has
not been more than a few minutes past the scheduled
close of the election. 2
In this case the reasons for Blakley's absence are
not at all unusual. Bad weather prevented him from
arriving until well after 4 p.m. The storm was so bad
that even if Blakley had not earlier in the day
volunteered his help to another truckdriver he still
would have missed the election.
Also, the agent knew only that Blakley had called
in to announce that he would be late. She had no
indication when, if at all, he might arrive. He actually
arrived an hour and 20 minutes after the polls had
been closed and the votes counted. Regardless of the
quality of Blakley's excuse, we find that the agent's
I Glauber Water Works, 112 NLRB 1462(1955).
2 Hanford Sentinel, Inc., d/b/a Hanford Sentinel, 163 NLRB 1004 (1967);
New England Oyster House of Cocoa Beach, Inc., 225 NLRB 682 (1976).
3 In two cases involving a two-person unit where only one vote was cast,
a new election was ordered because the vote was not "representative." Kit
Manufacturing Company, 198 NLRB I (1971), and Barnard Gold and Jack
decision to close the polls at the agreed-upon time
was an exercise of proper discretion.
We also find no merit in the finding of the
Regional Director that the Board agent's discretion
should have been affected by the liklihood that
Blakley's vote would have been determinative in this
small three-person unit. The board has not set precise
standards with respect to the probability of a late
voter's either creating or breaking a tie. We give
special consideration to elections involving two or
three eligible voters in which only one vote was cast,
because of our concern that such vote is not
representative. 3 Here, however, there were two votes
cast in a three-person unit, a sufficient proportion to
be representative, and, in any event, as stated in
Piper Industries, Inc., Plastics Products Division, 212
NLRB 474 (1974), the Act does not provide for a
quorum or any definite proportion of the eligible
electorate as necessary for a valid election.
Accordingly, we shall reverse the Regional Direc-
tor's recommendation for a new election and certify
the results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Local No. 371,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and that
said labor organization is not the exclusive represen-
tative of all the employees, in the unit herein
involved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
Wasserman, Co-parners d/b/a Gold & Baker, 55 NLRB 591 (1945), 54
NLRB 869 (1944). The Board also set aside, for the same reasons, an
election in a three-person unit where only one vote was cast. S. A. Kendall,
Jr., et al., 41 NLRB 395 (1942). In Yerges Van Liners, Inc., 162 NLRB 1259
(1967), a new election was ordered in a two-person unit because the one late
vote "could have affected" the election.
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