Sand's Electric

National Labor Relations Board - Board DecisionsOct 5, 1965

155 N.L.R.B. 39 (N.L.R.B. 1965)

SAND'S ELECTRIC 39 Harold Sand d/b/a Sand 's Electric and Local Union No . 426, In- ternational Brotherhood of Electrical Workers, AFL-CIO, Petitioner . Case No. 18-RC-635. October 5, 1965 DECISION ON REVIEW AND DIRECTION On June 9, 1965, the Regional Director for Region 18 issued a Sup- plemental Decision and Certification of Results of Election, in which he sustained one challenged ballot, which was determinative of the re- sults, and, as the Petitioner failed to obtain a majority of the valid ballots cast, he certified the results of the election. Thereafter, in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's Supplemental Decision. By telegraphic order dated July 26, 1965, the Board granted the Petitioner's request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the entire record in this case and makes the following findings : After the election herein on May 5, 1965, the parties were furnished with a tally of ballots which showed that of five people voting, two cast valid ballots for, and two against, the Petitioner and one cast a challenged ballot. The Regional Director found that, as the chal- lenged employee had failed to comply with the State licensing require- ments, he could not legally qualify as an apprentice electrician and, therefore, was not eligible to vote in the unit of apprentice and journey- men electricians found to be appropriate. The Petitioner contends on review that the challenged employee had at all times material herein performed the work of an apprentice electrician, and that the Regional Director erred in excluding him from the unit solely because he had neglected to obtain an apprenticeship permit from the South Dakota electrical board. The Board has held that noncompliance with statutory licensing re- quirements is not controlling in its determination of unit placement and voting eligibility questions.' As the employee in issue devotes part of his time to electrical work, we conclude that he shares a suffi- ' See M Pavia Fernandez , Inc., d /b/a Hospital Pavia, 109 NLRB 746 , where the Board overruled challenges to ballots of 12 nurses aides whom the employer challenged solely on the ground that they did not possess a license required under Puerto Rico statute for such employment. 155 NLRB No. 6. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cient community of interest with the journeymen electricians to war- rant his inclusion in the unit. Accordingly, we hereby overrule the challenge to his ballot and shall direct that it be opened and counted. [The Board directed that the Regional Director for Region 18 shall, within 10 days from the date of this Direction, open and count the ballot of Wayne Kanten and serve upon the parties a revised tally of ballots.] Marvin A. Witbeck d/b/a Witbeck 's IGA Supermarket and Retail Store Employees Union , Local No. 11, Retail Clerks Interna- tional Association , AFL-CIO. Case No. 7-CA-4.972. October 6, 1965 DECISION AND ORDER On June 8, 1965, Trial Examiner C. W. Whittemore issued his Deci- sion 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 attached Trial Examiner's Deci- sion . The Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed a motion to strike the Respondent's exceptions and brief. However, the Executive Secretary informed the General Counsel that the National Labor Relations Board would not rule on the motion at that time and granted an extension for receipt of cross-exceptions and/or answering brief.' Thereafter, the General Counsel filed cross-exceptions and a brief in opposition to the Respond- ent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, briefs, and motion, and the entire record in this case, and hereby adopts the find- ings, conclusions,2 and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1The General Counsel's motion to strike the exceptions and brief is denied. e we adopt the Trial Examiner ' s conclusion that Respondent violated Section 8(a) (5} because, we find, Respondent's refusal to recognize the Union and to check the authori- zation cards submitted by the Union was motivated by bad faith, as evidenced by the un- fair labor practices committed by Respondent both before and after the Union made its claim for recognition. 155 NLRB No. 14.