DFWS, Inc. d/b/a The Guild San Jose

National Labor Relations Board - Unpublished Board Decisions

May 27, 2020

32-RC-248845 (N.L.R.B. May. 27, 2020)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DFWS INC. d/b/a THE GUILD SAN JOSE
Employer
and Case 32-RC-248845
UNITED FOOD & COMMERCIAL WORKERS
UNION, LOCAL 5
Petitioner
ORDER
The Employer’s Requests for Review of the Regional Director’s Decision
Affirming the Hearing Officer’s Findings and Recommendations and Order to Open and
Count Determinative Challenged Ballots and the Regional Director’s Certification of
Representative are denied as they raise no substantial issues warranting review.1 The
Employer’s request to stay the certification is denied as moot.
1 In its Request for Review of the Decision Affirming, the Employer contends that the
Regional Director erred in overruling the Employer’s objections, but only requests that
the Board incorporate its objections and the arguments from its post-hearing brief into
its Request for Review should the revised Tally of Ballots result in victory for the
Petitioner. Indeed, the Request for Review at no point raises any argument with respect
to its objections nor does it provide any support for its assertion that the Regional
Director’s assessment of its objections was erroneous. However, Sec. 102.67(e) of the
Board’s Rules and Regulations makes clear that “[a] request for review must be a self-
contained document enabling the Board to rule on the basis of its contents without the
necessity of recourse to the record.” Accordingly, the Employer has not properly
presented any arguments relating to its objections to the Board, and we therefore
decline to consider them.
In denying the Employer’s Request for Review of the Order to Open and Count,
although the Regional Director arguably deviated from Sec. 11364.9 of the Board’s
Casehandling Manual, Part II, by opening and counting the overruled challenged ballots
while a request for review was pending with the Board, it is well-established that a
procedural deviation from the Casehandling Manual, standing alone, is not enough to
merit a rerun election, and that the Board requires more than mere speculative harm to
overturn an election. See Polymers, Inc., 174 NLRB 282, 283 (1969), enfd. 414 F.2d
999 (2d. Cir. 1969), cert. denied 396 U.S. 1010 (1970); J. C. Brock Corp., 318 NLRB
403, 404 (1995). The Employer has not identified any harm here. The opening of the
affected ballots did not breach voter secrecy – which Sec. 11364.9 seeks to protect –
because no individual voter could have been identified. Moreover, because we are
JOHN F. RING, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., May 27, 2020.
denying review of the Regional Director’s determinations with respect to the challenged
ballots, those ballots would have been counted in any event, meaning that any arguable
procedural error could not have affected the results of the election. Because the
Employer’s Request for Review of the Decision Affirming was docketed within the 14
days provided for under Sec. 102.67(c) of the Board’s Rules and Regulations, we do
not, however, rely on the Regional Director’s characterization that it was “untimely.”
Regarding the Employer’s request to stay the certification, we find that the
Regional Director’s decision to issue a certification while a request for review remained
pending was permissible under the representation-case procedures currently in effect.
We observe, however, that the Regional Director’s decision in this regard raises many
of the concerns that led the Board to recently adopt changes to its representation-case
procedures to prohibit this practice. See 84 Fed. Reg. 69524 (Dec. 18, 2019). Those
amendments will not take effect until May 31, 2020, however. 85 Fed. Reg. 17500
(Mar. 30, 2020).