N. A. Woodworth Co.

National Labor Relations Board - Board Decisions

May 2, 1956

115 N.L.R.B. 1263 (N.L.R.B. 1956)

N. A. WOODWORTFI COMPANY 1263
N. A. Woodworth Company and Mechanics Educational Society
of America, AFL-CIO, Petitioner . Case No. 7-RC--2797. May 2,
1956
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to the Board's Decision and Direction of Election, issued
July 20, 1955,1 an election was conducted on August 16, 1955, under
the direction and supervision of the Regional Director for the Seventh
Region. Upon conclusion of the election the parties were furnished
a tally of ballots which showed that of approximately 350 eligible
voters, 298 cast valid ballots, of which 135 were cast for the Petitioner,
123 were cast against the Petitioner, and 40 cast challenged' ballots.
The challenged ballots are sufficient in number to affect the results
of the election.
On August 23, 1955, the Employer timely filed objections to conduct
affecting the results of the election in which it alleged, in substance,
that : (1) Prior to the election the Petitioner threatened an employee
with respect to his conduct in the organizational campaign and his
vote in the election; and (2) the election was conducted in a manner
which violated the Board's rules for, proper conduct of elections.
In accordance with the Rules and Regulations of the Board, the
Regional Director conducted an investigation and on January 26,
1956, issued and duly served on the parties his report on challenged,
ballots and objections to election in which he recommended that the
Employer's objections be overruled and that the challenges to 35
ballots be sustained and the challenges to 4 ballots be overruled. He
made no recommendations with respect to two challenged ballots.
Thereafter, on February 2, 1956, the Employer timely filed its excep-
tions to the report on challenged ballots and objections to election and
a brief in support thereof. The Petitioner filed no exceptions.
The Objections
In its first objection, the Employer contends that the Petitioner
through one of its organizers threatened an employee with respect
to his conduct in the organizational campaign and his vote in the
election. The Regional Director's investigation revealed that the
incident occurred on May 12, 1955, more than 2 months before the
Board's Decision and Direction of Election, and although the Em-
ployer was apprised of the incident on May 13, 1955, it did not pro-'
Not reported in printed volumes of Board Decisions and Orders
a Forty -one ballots were in fact challenged The parties were advised of this the day
following the issuance of the tally of ballots
115 NLRB No. 197.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
test or file' charges until after the election. In these circumstances,
as the Board will not consider election objections based on conduct
which occurs prior to the issuance of the Decision and Direction of
Election, we shall, in accordance with the Regional Director's recom-
mendation, overrule the objection.3
In its second objection the Employer contends that as one of the
challenged ballots was "lost" by the Board representative and not
"found" while the tally of ballots was in progress, the "integrity of
the election" was destroyed and the election should be set aside. The
Regional Director's investigation showed that the original tally of
ballots had revealed 40 challenged ballots. Thereafter, the ballots
were retained in the custody of the Board representative and recounted
the following morning. The recount disclosed 41 challenged ballots.
The parties were immediately apprised of the results of the recount,
and agreed that the ballot not previously counted was that of Robert
Best. The Regional Director concluded that as all of the ballots
had been retained in the possession of a Board agent under seal, the
Employer's contention lacked substance. Finding that through in-
advertence the ballot had merely not been counted during the first
tally and that in the circumstances no substantial ground for ob-
jection existed, the Regional Director recommended that the objection
be overruled.
Although it excepts to the Regional Director's factual findings,
the Employer does not present any affirmative evidence in support of
its exceptions. Accordingly, as we believe that the Regional Di-
rector's investigation shows that the identity of the voter casting the
challenged ballot is not in doubt; that the ballot in question was in
the possession of a Board representative at all times subsequent to the
election; and that the discrepancy in the count resulted merely from
error in the count and not through a misplacement or loss of the
ballot, we find that the Employer's objection does not raise a substan-
tial issue with respect to the conduct of the election and overrule it.'
The Employer in its third and fourth objections contends that the
voters in the election were caused to doubt the secrecy and freedom
of their ballot as a result of the election procedure followed by the
Board representative, and were thus precluded from freely exercising
their choice of a bargaining representative. The Employer asserts
that in violation of the Board's rules governing the conduct of elec-
tions, the Board representative (1) in the presence of other employees
interviewed challengees proceeding through the election line, (2) re-
corded the information obtained as a result of the interview on the
8 F W. Woolworth Go, 109 NLRB 1446, 1448.
' The cases cited in support of the Employer's objections are not controlling as they
are factually distinguishable.
N. A. WOODVVORTH ' COMPANY 1265
outside of an envelope not the type specified in the Board's instruc-
tions for use, and (3) "caused- each challengee to affix his signature on
the outside of the envelope.
The Regional- Director's investigation revealed that as challengees
received their ballots a Board representative informed them of their
challenge and the reasons therefor. Each challengee was then inter-
viewed in order to ascertain his. duties and- responsibilities. The
Regional Director found that not only was this in accordance with
standard challenge procedure, but that in the circumstances, this
procedure was necessary because the Employer had failed to in some
manner designate on the payroll list submitted, employees in ex-
cluded classifications, or in the alternative to exclude them from the
list. Further, he found that because of the space required to accu-
rately describe the duties of the challengees, the larger or retained side
of the envelope was used and not the customary small, discardable
portion of the challenged ballot. In all the circumstances, the Re-
gional Director concluded that the challenging procedure was proper;
that there was no evidence that the election was impeded in any way;
and that there was no substantial ground for finding that the chal-
lengees were caused to believe that the freedom or secrecy of their
vote had been or would at the time the ballot was opened and counted
be jeopardized. Accordingly, he recommended that the objections
be overruled. We agree. The Employer presented no evidence in
support of its objections and we find virtually nothing in its excep-
tions to contradict the factual findings-and conclusions of the Regional
Director. Further, it appears that the challenging procedure was con-
ducted in conformity with the Board's rules. We find, therefore, that
the Employer's objections do not raise substantial and material issues
with respect to the conduct of the election. Accordingly we overrule
them.
The Challenged Ballots
The Petitioner challenged 26 ballots 5 on the ground that they were:
cast by leaders ineligible to vote by reason of their exclusion from the
unit as supervisors.6 The Employer agrees that the challenges to the
ballots of 15 leaders should be sustained on the ground that their super-
visory status was litigated at the representation hearing. However,
it seeks a hearing to determine the supervisory status of 14 other al-
leged leaders whose unit placement, it contends, was not considered
at the hearing. The Regional Director investigated the challenges
In addition, the Petitioner subsequent to the election objected to the counting of 'i
ballots of alleged leaders who it asserts were not challenged as the result of the alleged
inexperience of its observers As found by the Regional Director, this claim is in the
nature of a post-election challenge which the Board will not entertain.
In its Decision and Direction of Election the Boaid found leaders to be supervisors
and excluded them from the unit. _
390609-56-vol. 115-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommended that the challenges to 24 leaders I be sustained on
the ground that the question of the supervisory status of leaders
was litigated at the representation hearing and the Board's determina
tion is not open to question. We agree. The Board has reviewed
the evidence adduced at the representation hearing pertaining to the
supervisory status of leaders and finds that the parties were afforded
and availed themselves of the opportunity to fully litigate the ques-
tion in issue . We cannot, as the Employer would have us do, 'read
into our determination of the status of leaders an intent to exclude
from the unit found appropriate in our July 20, 1955, Decision and
Direction of Election, only 15 specific leaders. At the hearing the
parties did not undertake to litigate the supervisory status of each
individual leader, but, rather, as is abundantly clear from the "record
they presented evidence bearing upon the duties and responsibilities
common to all the Employer's leaders. Based on that evidence the
Board concluded that all of the Employer's leaders possessed the
statutory authority of supervisors and excluded them from the unit.
We see no reason at this stage to depart from that determination. The
fact that the Board in its decision made "reference to "15 leaders"
which testimony had indicated were the total number of leaders em-
ployed," and later investigation revealed that 32 leaders are in fact
employed, does not, in view of the nature of the testimony adduced
at the hearing and the basis of the Board's determination , 'constitute
a compelling reason for reexamining our determination at this stage
of the proceeding. As the parties have once been afforded the op-
portunity to present evidence we shall deny the Employer' s request
for a hearing and shall sustain the challenges to the ballot's of 24
leaders.'
In addition, the Petitioner also challenged 13 and the Employer 2
other ballots.10 As the Employer concedes that Harold McDonald and
Clarence Sharkey are supervisors and filed no exceptions to the Re-
gional Director's determination that Harold Smith, Joseph Kolek,
and Lawrence Lauderback are plant clerical employees, we shall, in
accordance with the Regional Director's recommendation, sustain the
7 The Regional Director made no determination of the challenges to the ballots of Wil-
liam Studaker and Jack La Chance who have , respectively , one and no employees working
under them In view of our determination herein, their ballots will not determine the
outcome of the election Accordingly , we will not resolve the challenges to these ballots.
8 The Employer 's factory manager so testified
8 The challenges to the ballots of the following leaders are sustained . Donald Baker,
Newman Bamberger , Bernard Barbour , Robert Crisp, Clarence Dopp , Arnold Duthe, Louis
Ebaugh , Alfred Fifield , Louis Goulet , Earl Hines, Ervin Holthus , Ken Huotari , Eugene
Jesionowski, Clarence Lambert, Anthony Leach, Ronald McIlroy, William McGregor,
Robert Pawlak , Herman Poremsky , Donald Post , Casimer Prusinowski , Donald Rice,
Wayne Shontz, and Luther Vires
10 The Petitioner challenged the ballots of Richard Beuter , John Mackinnon, Carl Hinck-
ley, Arthur Knott, Alex McDonald, William Conners, Thomas Best, Cora Glass, Harold
Smith , Joseph Kolek, Lawrence Lauderback , Harold McDonald , and Clarence Sharkey ;
while the Employer challenged the ballot of Marie Morford and Nokie Mae Francis.
MORGANTON FULL FASHIONED HOSIERY COMPANY 1267
challenges to their ballots. In addition, we shall sustain the challenge`
to the ballot of Nokie Mae Francis on the ground that she has been
permanently laid off and is ineligible to vote in the election. The Re-
gional Director's investigation reveals that Francis was laid off on May
31, 1955, because of a reduction in force. The Employer contends that
Francis will not be rehired because the work in the department in
which she was employed is not suitable for women. The Petitioner con-
tends that she has retained her seniority and other benefits and has
been only temporarily laid off. As the retention of seniority status is
not determinative of eligibility to vote and as the Petitioner adduced
no persuasive evidence to refute the Employer's contention that
Francis has been permanently laid off, we shall sustain the challenge
to her ballot. Accordingly, in these circumstances we shall not re-
solve the other challenges as they are-insufficient in number to affect the
results of the election.
As we have overruled the objections to the election and as the tally
of ballots shows that the Petitioner received a majority of the valid
ballots cast and the number of unresolved challenges are insufficient to
affect the results of the election, we shall certify the Petitioner as the
collective-bargaining representative of the employees in the appro-
priate unit.
[The Board certified Mechanics Educational Society of America,
AFL-CIO, as the designated collective-bargaining representative of
production and maintenance employees at the Employer's Ferndale,
Michigan, plants, excluding office and plant clerical employees, sales
representatives, technical employees, professional employees, guards,
leaders, and supervisors as defined in the Act.]
Morganton Full Fashioned Hosiery Company and Huffman
Full Fashioned Hosiery Mills, Inc. and American Federation
of Hosiery " Workers, AFL-CIO. Case No. 11-CA-930. May 4,
1956
DECISION AND ORDER
On February 9, 1956, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (5) of the Act.
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondents, the General
Counsel, and the Union filed exceptions to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was committed. The rul-
115 NLRB No. 199.