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UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD


REGION 21
UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 135
Employer
and Case 21-RD-242912
KELLY T. TANAKA, AN INDIVIDUAL
Petitioner
and
FEDERATION OF AGENTS AND
INTERNATIONAL REPRESENTATIVES
Union

DECISION ON OBJECTIONS AND


CERTIFICATION OF RESULTS

For the reasons set forth below, the Union’s objections are overruled in their entirety and
a certification of results should issue.

Based on a petition filed on June 7, 2019, and pursuant to a Stipulated Election


Agreement, an election was conducted on July 1, 2019 to determine whether a unit of employees
of United Food and Commercial Workers, Local 135 (Employer) wished to be represented for
purposes of collective bargaining by the Federation of Agents and International Representatives
(Union). That voting unit consists of:

Included: All Union Representatives and Organizers employed by the Employer at


its facilities currently located at 2001 Camino Del Rio South, San Diego,
California and 323A South Rancho Santa Fe Road, San Marcos,
California.

Excluded: The President, Executive-Secretary, Executive Assistants to the President,


Administrative Assistants to the President, Assistants to the President,
Directors, Comptroller, Confidential Employees, Office Employees,
Clerical Employees, Guards, Watchmen, Janitors, and Supervisors as
defined in the Act.

The tally of ballots prepared following the conclusion of the election showed that of the
approximately 10 eligible voters, 1 vote was cast for and 5 votes were cast against the Union.
There was one challenged ballot, an insufficient number to affect the results of the election.
United Food and Commercial Workers
Union, Local 135
Case 21-RD-242912

THE OBJECTIONS

On July 8, 2019, the Union timely filed objections to conduct affecting the results of the
election. 1

The Union’s objections state the following:

1. The voter lists were inaccurate.

2. The Board failed to docket and investigate timely charges.

On July 8, 2019, the Union also submitted a brief statement and documents which
constituted its written offer of proof. According to the offer of proof, employees who were out
on medical leave, as well as terminated employees, were left off the voter list. However, the
offer of proof did not identify the names of any employees who were left off the voter list or
state how many employees were left off the list. The Union also contends in its offer of proof
that officers of the Employer voted in the election and thereby tainted the election.

The documents provided with the offer of proof included the confirmation of the Union’s
June 27, 2019 e-filing of a charge against the Employer, a copy of that charge, and a copy of the
voter list in this case with a notation indicating that one of the employees on the list was a
member of the Employer’s Executive Board.

The Union’s offer of proof did not identify any witnesses or summarize their testimony.

DISCUSSION

Section 102.69(a) of the National Labor Relations Board’s (Board) Rules and
Regulations provides that within 7 days after the tally of ballot has been prepared, any party may
file with the Regional Director objections to the conduct of the election or to conduct affecting
the results of the election. To be timely filed, Section 102.69(a) requires that the objections
contain a short statement of the reasons for the objections and a written offer of proof in support
of the objections, which identifies its witnesses and summarizes their testimony, except that the
Regional Director may extend the time for filing the written offer of proof in support of the
election objections upon request of a party showing good cause. Section 102.69(a) also requires
a party filing objections to serve a copy of the objections, but not the offer of proof, on all other
parties and include a certificate of service when filing the objections.

In the present case, the Union failed to provide the Region with a sufficient offer of proof
pursuant to Section 102.69(a) of the Board’s Rules and Regulations. The statement and
documents provided, with no mention of the witnesses or summaries of their testimony, does not
meet the requirements of an offer of proof under Section 102.66(c) of the Board’s Rules and
Regulations. Section 102.66(c) provides that an offer of proof must contain the identification of
each witness the party would call to testify concerning the issue and a summary of each witness’s
testimony.

1
The Union filed the same objections in Case 21-RD-242914. The petition in that case involves a unit of office and
clerical employees, and was filed by a different petitioner.
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United Food and Commercial Workers
Union, Local 135
Case 21-RD-242912

Accordingly, the Union has not complied with the requirements of Section 102.69(a) and
further consideration of the objections is unwarranted.

However, even assuming that the Union’s offer of proof complied with the requirements
of Section 102.69(a), the evidence described in the offer of proof is not sufficient to warrant a
hearing in this matter.

A hearing on objections is held only when there are substantial and material issues of
fact. Care Enterprises, Inc., 306 NLRB 491, 491 fn. 2 (1992). The burden is on the objecting
party to provide evidence that the election should be set aside. Daylight Grocery Co. v. NLRB,
678 F.2d 905, 909 (11th Cir. 1982); Lamar Advertising of Janesville, 340 NLRB 979 (2003); and
Consumers Energy Co., 337 NLRB 752 (2002). The evidence must establish a prima facie case
in support of its objections. See Park Chevrolet-Geo, Inc., 308 NLRB 1010, 1010 fn. 1 (1992).

It is well settled that “[r]epresentation elections are not lightly set aside. There is a strong
presumption that ballots cast under specific NLRB procedural safeguards reflect the true desires
of the employees.” Lockheed Martin Skunk Works, 331 NLRB 852, 854 (2000), quoting NLRB
v. Hood Furniture Co., 941 F.2d 325, 328 (5th Cir. 1991) (internal citations omitted). Therefore,
“the burden of proof on parties seeking to have a Board-supervised election set aside is a heavy
one.” Delta Brands, Inc., 344 NLRB 252, 253 (2005), citing Kux Mfg. Co. v. NLRB, 890 F.2d
804, 808 (6th Cir. 1989). To prevail, the objecting party must establish facts raising a
“reasonable doubt as to the fairness and validity of the election.” Patient Care of Pennsylvania,
360 NLRB No. 76 (2014), citing Polymers, Inc., 174 NLRB 282, 282 (1969), enfd. 414 F.2d 999
(2d Cir. 1969), cert. denied 396 U.S. 1010 (1970). Moreover, to meet its burden, the objecting
party must show that the conduct in question affected employees in the voting unit. Avante at
Boca Raton, Inc., 323 NLRB 555, 560 (1997) (overruling employer’s objection where no
evidence that unit employees knew of the alleged coercive incident).

In determining whether to set aside an election, the Board applies an objective test. The
test is whether the conduct of a party has “the tendency to interfere with employees’ freedom of
choice.” Cambridge Tool & Mfg. Co., Inc., 316 NLRB 716, 716 (1995). Thus, under the
Board’s test, the issue is not whether a party’s conduct in fact coerced employees, but whether
the party’s misconduct reasonably tended to interfere with the employees’ free and uncoerced
choice in the election. Baja’s Place, 268 NLRB 868, 868 (1984). See also Pearson Education,
Inc., 336 NLRB 979, 983 (2001), citing Amalgamated Clothing Workers v. NLRB, 441 F.2d
1027, 1031 (D.C. Cir. 1970).

With respect to Objection 1, the Union alleges that the voter list was inaccurate because
the list failed to include the names of terminated employees and employees out on medical leave.
The Union also contends that the name of a member of the Employer’s Executive Board appears
on the voter list.

In deciding whether an employer’s submission of a voter list that is inaccurate or


incomplete requires setting aside an election, the Board has emphasized that the rule is not to be
“mechanically applied.” Tectonic Instruments, 173 NLRB 588, 589 (1969); General Time
Corp., 195 NLRB 343, 344 (1972); Program Aids Co., 163 NLRB 145, 146 (1967); Thrifty Auto
Parts, 295 NLRB 1118 (1989). Balancing against the need to encourage conscientious efforts to

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United Food and Commercial Workers
Union, Local 135
Case 21-RD-242912

comply, the Board accordingly considers whether, under the circumstances of a particular case,
the employer has “substantially complied” with the requirements. Gamble Robinson Co., 180
NLRB 532 (1970); Sonfarrel, Inc., 188 NLRB 969 (1971).

A finding that the employer has acted in bad faith precludes a finding of substantial
compliance. Woodman’s Food Markets, 332 NLRB 503, 504 fn. 9 (200)(citing Bear Truss, Inc.,
325 NLRB 1162, 1162 fn. 3 (1998)). Absent a finding of bad faith, the Board at one time
occasionally declined to set aside an election when the number of omissions was only a small
percentage of the total number of eligible voters, even if the number of omissions was potentially
determinative. See, e.g., Kentfield Medical Hospital, 219 NLRB 174, 175 (1975). In
Woodman’s Food Markets, however, the Board concluded that this approach was inadequate and
that in addition to the percentage of omissions, it would henceforth also consider other factors
such as whether the number of omissions was determinative and the employer’s explanation for
the omissions. 332 NLRB 503, 304 (2000); see also Automatic Fire Systems, 357 NLRB 2340
(2012).

As noted above, the Union did not identify the names of any employees, or how many
employees, it contends were improperly left off the voter list. Thus, the Union’s offer of proof is
not sufficient to establish that the alleged omissions, if any, were potentially determinative of the
outcome. The Union also provides no specific basis as to why any employees terminated before
the eligibility date for the election should have been included on the voter list. With respect to
the appearance of an Executive Board member’s name on the voter list, to the extent the Union
contends that voter was ineligible, the Union could have challenged his ballot during the election
but did not.

Accordingly, the Union’s offer of proof with respect to Objection 1 fails to establish
substantial and material issues of fact warranting a hearing.

With respect to Objection 2, contrary to the Union’s contention, the charge it e-filed on
June 27, 2019 was docketed that same day, and is currently under investigation. The charge in
that case, Case 21-CA-244078, alleges that on February 11, 2019, the Employer unlawfully
terminated employees Tom Elbert and Sharyn Baldwin; and that within the last 6 months, the
Employer unlawfully terminated employee Mike Bracamontes, denied an employee’s request for
union representation during a disciplinary investigation, and failed and refused to bargain in
good faith with the Union. More specifically, the Union alleges the Employer terminated the
employees when new Employer leadership took over in retaliation for those employees
supporting the prior Employer leadership; that the Employer unlawfully failed to provide
information requested in connection with the terminations and related grievances; and that the
Employer failed to select arbitrators and/or arbitration dates for the grievances.

By this objection, none of which alleges any conduct that is the subject of Case 21-CA-
244078, the Union appears to take issue with the Region’s decision to proceed with the
scheduled July 1, 2019 election in this matter notwithstanding the June 27, 2019 filing of the
charge in Case 21-CA-244078.

Upon the filing of the charge in Case 21-CA-244078 and the Union’s request to block the
scheduled election, the Region reviewed the allegations in the Union’s charge and its offer of

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United Food and Commercial Workers
Union, Local 135
Case 21-RD-242912

proof that was submitted in support of the charge to determine if the scheduled election should
be blocked. The undersigned concluded that under NLRB Casehandling Manual Part 2
Representation Proceedings, Section 11731.6, Exception 6: Scheduled Election, 2 the charge in
Case 21-CA-244078 did not serve to block the election and that the election should proceed as
scheduled. In this regard, it was noted that the Union did not present strong evidence in its offer
of proof with the charge; two of the three alleged discharges took place approximately 5 months
before the scheduled election; and the Union did not submit evidence with the charge concerning
the seriousness of the allegations or their dissemination. Accordingly, I concluded that the
charge in Case 21-CA-244078 should not block the scheduled election in this matter and the
election was conducted as scheduled. 3

Objection 2 does not allege any of the conduct that is the subject of the charge in Case
21-CA-244078, and the Union has not otherwise established that Objection 2 raises substantial
and material issues of fact warranting a hearing.

Accordingly, I am overruling Objections 1 and 2 in their entirety.

CONCLUSION

The Union failed to provide the Region with a sufficient offer of proof pursuant to
Section 102.69(a) of the Board’s Rules and Regulations. Accordingly, the Union has not
complied with the requirements of Section 102.69(a) and further consideration of the objections
is unwarranted.

Even assuming that the Union had submitted a sufficient offer of proof that complied
with the requirements of Section 102.69(a), the evidence described in the offer of proof is not
sufficient to warrant a hearing in this matter.

Therefore, pursuant to Section 102.69(c)(1)(i) of the Board’s Rules and Regulations, the
Union’s Objections to the Election are overruled in their entirety and the following Certification
of Results should issue.

2
The factors to be considered under this exception in deciding whether to postpone the scheduled election pending
disposition of the charge; hold the election and impound the ballots until after disposition of the charge; or to
conduct the election and issue the tally of ballots prior to investigating the charge are as follows:
(1) The strength of the evidence described in the offer of proof in support of the charge allegations,
submitted with the request to block.
(2) The passage of time between the alleged conduct and the filing date of the charge.
(3) The seriousness of the allegations and the evidence submitted with the charge as to its dissemination.
3
The sole challenged ballot in this election was for a voter whose name did not appear on the voter list in this case,
but whose name did appear on the voter list in Case 21-RD-242914. None of the alleged discriminates in Case 21-
CA-244078 appeared to vote in the election. Even had the three alleged discriminatees voted in this election, their
ballots would not have been determinative of the outcome.
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United Food and Commercial Workers
Union, Local 135
Case 21-RD-242912

CERTIFICATION OF RESULTS

It is CERTIFIED that a majority of the valid ballots has not been cast for any labor
organization and that no labor organization is the exclusive representative of the employees in
the following appropriate unit:

Included: All Union Representatives and Organizers employed by the Employer at


its facilities currently located at 2001 Camino Del Rio South, San Diego,
California and 323A South Rancho Santa Fe Road, San Marcos,
California.

Excluded: The President, Executive-Secretary, Executive Assistants to the President,


Administrative Assistants to the President, Assistants to the President,
Directors, Comptroller, Confidential Employees, Office Employees,
Clerical Employees, Guards, Watchmen, Janitors, and Supervisors as
defined in the Act.

REQUEST FOR REVIEW

Pursuant to Section 102.69(c)(1)(i) and (2) of the Board’s Rules and Regulations, any
party may file with the Board in Washington, DC, a request for review of this decision. The
request for review must conform to the requirements of Section 102.67(e) and (i)(1) of the
Board’s rules and must be received by the Board in Washington by August 7, 2019. If no
request for review is filed, the decision is final and shall have the same effect as if issued by the
Board.

A request for review may be E-Filed through the Agency’s website but may not be filed
by facsimile. To E-File the request for review, go to www.nlrb.gov, select E-File Documents,
enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the Request
for Review should be addressed to the Executive Secretary, National Labor Relations Board,
1015 Half Street SE, Washington, DC 20570-0001. A party filing a request for review must
serve a copy of the request on the other parties and file a copy with the Regional Director. A
certificate of service must be filed with the Board together with the request for review.

Dated: July 24, 2019

William B. Cowen, Regional Director


National Labor Relations Board
Region 21
888 South Figueroa Street, 9th Floor
Los Angeles, CA 90017

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