Happ Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 21, 1959

124 N.L.R.B. 202 (N.L.R.B. 1959)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be included in the unit, but maintains that the employment
of the rest is too irregular to warrant their inclusion in the unit. As
the record does not afford sufficient basis for determining which of
these employees are regular part-time employees and which are casual
employees, we shall permit all of them to vote subject to challenge.4
The Employer would exclude the manager and assistant manager
in each store as supervisors, but would include the two second assistant
managers and the produce department head in each store. The Peti-
tioner took no position.
The manager of each store is responsible for its operations and has
authority to hire 5 and discharge employees. The assistant manager
is primarily responsible for the grocery department, but exercises
the same authority as the manager during the latter's absence, which
occurs about 40 hours of the 85 hours that the store is open each week.
We find that the manager and assistant manager in each store are
supervisors, and exclude them from the unit.
The second assistant manager and produce department head are
hourly paid employees who, in directing the work of other employees,
only transmit the instructions of the manager and assistant manager.
They have no authority to hire or discharge, nor to recommend such
action. We find that they are not supervisors s and include them.
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: All employees at the Employer's Wynne-
wood, Casa View, Garland, and Big Town stores in the greater Dallas,
Texas, area, including regular part-time employees, but excluding
casual employees, meat market employees, guards and watchmen, and
all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
4 See Giant Markets, Inc , 107 NLRB 10, 12.
' All hirings by store managers are temporary until approved by the district manager.
J. P. Stevens & Company, Inc., 123 NLRB 758.
Thomas Lanier and Sartain Lanier d/b/a Happ Manufacturing
Company and International Ladies' Garment Workers' Union,
AFL-CIO, Petitioner. Case No. 10-RC-4238. July 21, 1959
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
Pursuant to a Decision and Direction of Election,' an election by
secret ballot was conducted on February 27, 1959, under the direction
and supervision of the Acting Regional Director for the 'Tenth Re-
a Thomas Lanier and Sartain Lanier d/b/a Happ Manufacturing Company, 10-RC-4238,
February 12,19'59 (unpublished).
124 NLRB No. 22.
HAPP MANUFACTURING COMPANY 203
gion. At the conclusion of the election, the parties were furnished
with a, tally of ballots which shows that, of approximately 210 eligible
voters, 191 cast ballots, of which 95 were for the Petitioner, 92 were
cast against the participating labor organization, and 4 were chal-
lenged. The challenged ballots were sufficient in number to affect
the results of the election.
On March 6, 1959, the Employer filed with the Acting Regional
Director objections to conduct affecting results of the election. There-
upon, in accordance with the Board's Rules and Regulations, the
Acting Regional Director conducted an investigation, and on April
30, 1959, issued, and duly served on the parties, his report on objec-
tions to election and challenged ballots. Both the Petitioner and the
Employer filed timely exceptions to this report.
In his report the Acting Regional Director recommended that the
challenge to the ballot of Florence Witherington be sustained, and
that the challenges to the ballots of Bea.uford Mae McGee and Barbara
Jean Day be overruled and that McGee's and Day's ballots be opened
and counted. As no exceptions to the Acting Regional Director's
report have been filed with respect to the foregoing challenging bal-
lots, we hereby adopt the Acting Regional Director's recommendations.
The ballot of Corrine S. Davis was challenged by the Board agent
on the ground that her name did not appear on the eligibility list.
The Acting Regional Director's investigation discloses that Davis
was discharged on February 6, 1959,2 "because of low production"
and "lack of work on part of the above." The Petitioner filed charges
alleging Davis was discriminatorily discharged, but the Acting Re-
gional Director refused to issue a complaint because of insufficient
evidence to sustain the charge. Accordingly, the Acting Regional
Director recommended that the challenge to Davis' ballot be sus-
tained. The Petitioner, in its exceptions, urges that as a request for
review has been filed with the General Counsel seeking a reversal of
the Acting Regional Directors' refusal to issue a complaint in this
matter, the Board should "await final determination in this matter
until the General Counsel has an opportunity to review and decide
the issue." As the Board does not delay a representation proceeding
pending the resolution of an appeal from the Regional Director's
refusal to issue a complaint, we find no merit in the Petitioner's
request, and hereby deny it .3 Accordingly, we shall adopt the Acting
Regional Director's recommendation, and sustain the challenge to
Davis' ballot.
2 Eligibility to vote in the election was based on the payroll period ending February 7,
1959.
3 Sylvania Electric Products, Inc., 119 NLRB 824, at 826 ; Cuneo Press of Indiana,
114 NLRB 764.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Objections
In its objections the Employer alleged, in effect that : (1) there
were five challenged ballots instead of four as set forth on the tally
of ballots; (2) the Board agent denied certain employees whose names
appeared on the eligibility list their right to vote by refusing to give
them ballots, and that he permitted other persons to vote who were
similarly situated and about whom the same question of eligibility
was or could have been raised, and thus there are included in the tabu-
lation of ballots, a number of improperly cast ballots; and (3) on the
night preceding the election, several employees received phone calls
and were threatened with personal harm or violence by the caller,
and because of these threats a number of employees refrained from
coming to work or voting in the election.
As to objection (1), the Acting Regional Director's investigation
discloses that the ballot of Evelyn R. Jackson was challenged by the
Board agent because her name was not on the eligibility list.4 A
challenge envelope was prepared by the Board agent and Jackson was
instructed as to the procedure to follow in casting a challenged ballot.
The Board agent then permitted other employees who were waiting
in line to vote. Notwithstanding the Board agent's instructions, Jack-
son left the challenge envelope on the table and dropped her ballot
in the box, thereby intermingling it with other unchallenged ballots.
Subsequently, an analysis of the eligibility list shows that there should
have been 186 unchallenged ballots, not counting the one void ballot,
whereas 187 votes were shown on the tally of ballots.'
The Acting Regional Director concluded that if, after a revised
tally of ballots, it is disclosed that the Petitioner has not won the elec-
tion by a majority of more than one vote, then the foregoing conduct
raises material and substantial issues with respect to the election, and
he recommends that the election be set aside and a new election be
directed. If, however, the Petitioner does retain more than a one-vote
lead after certain challenged ballots described elsewhere herein have
been opened and counted, the Acting Regional Director would find
that the foregoing conduct does not raise material and substantial
issues with respect to the election.
4 Evelyn R. Jackson was terminated on February 6, 1.959, "because of low production"
and "lack of work on the part of the above." It would appear she was not an eligible
voter. The Petitioner raises the same contentions with respect to the ballot cast by
Jackson as it did with respect to the ballot of Davis. For the reasons set forth above
in connection with the Davis ballot, we find no merit in this contention.
5 We note that in a signed statement the Employer 's observer indicated that he had
heard the Board agent tell Jackson to wait while he filled out a challenge envelope, and
heard him instruct her to mark her ballot , place it in the envelope which he had filled
out, and to place the envelope in the ballot box. Thereafter , according to the observer,
he saw her take the ballot but leave the challenge envelope on the table , enter the voting
booth, and when she came out of the voting booth drop the ballot in the ballot box with-
out the envelope . Despite his observations , it does not appear that the Employer's ob-
server notified the Board agent of this irregularity at the time it was occurring.
HAPP MANUFACTURING COMPANY 205
In its exceptions the Employer contends that the Board agent's
failure to segregate the ballot of Jackson was conduct which im-
properly influenced other voters, and which, per se, warrants setting
aside the election. We find no merit in these contentions. Although
the intermingling of challenged ballots with unchallenged ballots
should be diligently guarded against, we are of the opinion that under
the circumstances of this case the intermingling of one challenged
ballot with the unchallenged ballots did not improperly influence
other voters and does not per se warrant setting aside the election.'
Accordingly, and in view of our other findings elsewhere herein, we
shall adopt the Regional Director's recommendations and conclusions
in this respect.
As to objection 2, in its exceptions, the Employer now contends in
effect that the Board agent's investigation in determining the eligibil-
ity of prospective voters was incomplete in that he inquired only into
the employment dates of individuals named by the Union and of no
other person on the eligibility list, and that as a result several persons
hired after the eligibility period were wrongfully permitted to vote.
We find no merit in the exceptions.
The Acting Regional Director's investigation reveals that although
the eligibility list was to be composed of those employees employed
during the payroll period ending February 7, 1959, the eligibility list
furnished by the Employer on the day before the election was actually
based on the payroll period of February 21, 1959.' After the Board
agent received the eligibility list, a preelection conference was held,
but the Employer did not attend. During the conference the Peti-
tioner took issue with several of the names on the eligibility list,
contending that certain named employees so listed were employed
after the cutoff date. About 11/2 hours before the polls opened, the
Board agent met with Employer's counsel, but was unable to resolve
the potential challenges.8 At the election, the Petitioner's observer
challenged a number of employees on the grounds they were hired
after the cutoff date. The Board agent, in procuring data for the
challenge envelope, questioned the challenged voters as to when they
6 See J. I. Case Company, 85 NLRB 576, at 578.
.7 The Board agent was unaware that the wrong eligibility list had been given him
until the investigation of the Employer 's objections.
8 Although the Employer was the only party in a position to know exactly who had
commenced working after the cutoff date, we note that the Employer does not claim that
it furnished the names of such employees to the Board agent. Instead , it asserts that
when the Board agent inquired as to the employment date of certain employees ques-
tioned by the Petitioner, the Employer advised the Board agent that "some of the per-
sons on the list" commenced work after the cutoff date. Under these circumstances, the
Employer is hardly in a position where it can now contend that the Board agent's
investigation was incomplete or improper and failed to prevent two employees who had
been hired after the cutoff date from casting unchallenged ballots, the Employer having
failed to apprise the Board agent before the election that the two employees in question
were hired after the eligibility date or to challenge them at the polls. We , like the
Regional Director, regard the Employer 's contention to be in effect a post-election
challenge.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were employed. When it was revealed that an employee was hired
after the cutoff date, the Board agent explained the eligibility require-
ment and told each employee that he or she could elect either not to
vote or vote a challenged ballot.' In view of the foregoing, and on the
basis of the entire record, and as the Board agent investigated the
eligibility of all those voters brought to his attention by the challenges
of the observers, we find no merit in Employer's objection 2, and we
hereby overrule it.
As to objection 3, in its exceptions, the Employer contends that evi-
dence showed that the Petitioner and its members, agents, or repre-
sentatives conducted a campaign of fear and intimidation by telephone
prior to the election, and created an atmosphere of fear and intimida-
tion which made a fair election impossible. We find no merit in these
contentions.
The Acting Regional Director's investigation disclosed that several
employees were called by telephone the evening before the election.
They were called "scabby," or told "you scab, we are going to get you,"
or "you remember you got a boy going to school, you had better stay
out of this," or "vote no tomorrow and you will live to be sorry." None
of the employees receiving these calls were able to identify the calling
party.10 No evidence was submitted tending to show that those em-
ployees receiving the calls or any other employees failed to vote because
of the phone calls.
In view of the foregoing, the anonymous phone calls, while repre-
hensible, in our opinion were not such as to create a general atmos-
phere of fear and reprisal among the Employer's employees. Accord-
ingly, we agree with the Acting Regional Director that objection 3
should be overruled.11
[The Board directed that the -Regional Director for the Tenth
Region shall, within 10 days from the date of this Direction, open and
count the ballots of Beauford Mae McGee and Barbara Jean Day, and
serve upon the parties a supplemental tally of ballots.]
[The Board ordered that, if the Petitioner wins the election by a
majority of more than one vote the Regional Director shall certify the
P The Employer contends that evidence supplied by it clearly shows that the Board
agent refused to permit such employees to cast a challenged ballot . We have carefully
reviewed all of the affidavits furnished during the investigation of this matter, and, in
none of them do the employees state the Board agent refused to permit them to cast a
challenged ballot. Moreover , even assuming the Board agent did not permit those em-
ployees who admitted they commenced work after the cutoff date to cast challenged
ballots, in the circumstances of this case such conduct would not the improper as Board
agents are not required to issue ballots to obviously ineligible persons. Cooper Supply
Company, 120 NLRB 1023, at 1024.
'°Although the Employer indicates that the Union or its members or representatives
were responsible for these calls, we have carefully examined the affidavits submitted by
employees receiving the calls and none of them indicate they could identify the caller.
It does not appear that the Employer furnished any additional evidence to support its
contentions.
21 Tampa Crown Distributors , Inc., 118 NLRB 1420.
SHERMAN CAR WASH EQUIPMENT COMPANY 207
Petitioner as exclusive representative of all the employees in the unit
heretofore found to be appropriate.]
[The Board ordered that, if the Petitioner does not win the election
by a majority of more than one vote, the election held on February 27,
1959, be, and it hereby is, set aside.]
[The Board further ordered that, in the event the election is set aside,
a second election by secret ballot shall be conducted as early as possible,
but not later than 30 days from the date of this Order. The Regional
Director shall direct and supervise the election, subject to Sections
102.69 and 102.70 of the Board's Rules and Regulations. Eligible to
vote are those in the unit who were employed during the payroll period
immediately preceding the date of this Supplemental Decision, in-
cluding employees who did not work during that period because they
were ill, on vacation, or temporarily laid off. Those employees in the
military services of the United States, may vote, if they appear in
person at the polls. Ineligible to vote are employees who have, since
that. period, quit or been discharged for cause and have not been re-
hired or reinstated before the election date and employees on strike
who are not entitled to reinstatement. Those eligible shall vote
whether or not they desire to be represented, for collective bargaining
purposes, by International Ladies' Garment Workers' Union,
AFL-CIO.]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Supplemental Decision, Direction, and Order.
Sherman Car Wash Equipment Company and Ray Pasternak and
Metal Processors Union , Local 28, affiliated with International
Union of Doll and Toy Workers of the United States and Can-
ada, AFL-CIO , Party to the Contract . Case No. 7-CA-1891.
July 22, 1959
DECISION AND ORDER
On March 31, 1959, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
124 NLRB No. 27.