Thermco Products Corp.Download PDFNational Labor Relations Board - Board DecisionsApr 8, 1974209 N.L.R.B. 1149 (N.L.R.B. 1974) Copy Citation THERMCO PRODUCTS CORP. Thermco Products Corporation and Local Union No. 2125, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner . Case 21-RC -13322 April 8, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Pursuant to a petition filed July 9, 1973, and a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 21, an election by secret ballot was conducted in the above- entitled proceeding on September 7, 1973, under the direction and supervision of said Regional Director, among the employees in the stipulated unit. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the National Labor Relations Board Rules and Regulations, which showed that there were approximately 122 eligible voters, and that 108 ballots were cast of which 25 were for, and 48 against, the Petitioner, 25 were challenged, and none were void. The challenged ballots were sufficient in number to affect the results of the election. In accordance with the Board's Rules and Regula- tions, Series 8, as amended, the Acting Regional Director conducted an investigation of the chal- lenged ballots and thereafter, on November 7, 1973, issued and duly served on the parties his Report on the Challenged Ballots and Order Directing a Hearing in which he recommended to the Board that the challenge to the ballot of Robert Martinez be sustained, the challenge to the ballot of Paul Yankauskas III be overruled, and that a hearing be held to determine the challenges of 23 ballots, plus the eligibility of Marvin McIntosh (discussed herein- after). On November 12, 1973, the Employer filed an "Appeal to the Board From Order Directing a Hearing by the Acting Regional Director" alleging, inter alia, that 11 of the 23 individuals as to whom the Acting Regional Director would direct a hearing were clearly ineligible.' Thereafter, the Acting Regional Director conducted a further investigation and subsequently, on December 26, 1973, issued and duly served on the parties his Supplemental Report on Challenged Ballots setting forth additional facts. No exceptions were filed to the Acting Regional Director's Supplemental Report on Challenged Ballots. Pursuant to the provisions of Section 3(b) of the i The Employer agreed that the ballot of Paul Yankauskas III be counted , and the challenge to the ballot of Robert Martinez be sustained. 2 Elvirra Belding, Patrick Fitzpatrick, Pedro Gomez, John Harrison, Jim 1149 National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, including electronic technicians, laboratory em- ployees, shipping and receiving employees, ware- housemen, truckdrivers, leadmen, and leadwom- en; Excluding all other employees, including all office clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act, as amended. 5. The Board has considered the Acting Regional Director's report, and supplemental report, the Employer's exceptions, and the entire record in this case, and adopts the Acting Regional Director's findings and recommendations, as modified herein. The 23 challenged ballots as to which the Acting Regional Director recommended a hearing were cast by persons furnished to the Employer by two suppliers of temporary employees, Saddleback Inter- im Services and Helpmate of California, and the hearing was directed to resolve the issue of whether or not the Employer and the temporary employee suppliers constitute joint employers. The Acting Regional Director's supplemental report reveals that 112 of the challenged individuals were not on the payroll of either the temporary employee supplier or the Employer on or before the eligibility date of July 20, 1973. Accordingly, those 11 could not be eligible on any theory. We therefore find merit in the Employer's contention and we shall sustain the challenges to their ballots. In view of the above finding, and since, in the absence of exceptions thereto, we adopt pro forma the Acting Regional Director's recommendations that the challenge to the ballot of Robert Martinez be Medina, Armando Martinez, William Stead, Ron Wilber, Lowell Wood, Maurice O'Sullivan, and Ron Richilieu 209 NLRB No. 169 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sustained and that the challenge to the ballot of Paul Yankauskas III be overruled, the count of the ballots is 35 for, and 48 against, the Petitioner, 13 challenged (one being that of Yankauskas which is overruled), and none void. Since it appears that the ballot of Yankauskas may be determinative,'; we shall direct that it be opened and counted and, if the result is conclusive, that an appropriate certification be issued. In the event that Yankauskas' ballot is cast in favor of Petitioner and therefore does not result in a conclusive count, the remaining 12 challenged ballots4 may be determinative, and no exception has been taken to the Acting Regional Director's direction that a hearing be held as to the employee status of those individuals. Accordingly, we shall direct such a hearing in the event it becomes appropriate as herein set forth. Finally, the Acting Regional Director recommend- ed that any hearing on challenged ballots include the issue of the eligibility of Marvin McIntosh. McIntosh appeared at the polls to vote but was challenged because his name did not appear on the eligibility list. Through a mixup at the polls, he deposited his ballot in the ballot box without having placed it in a challenge envelope, as a result of which it was counted and is among the 83 ballots set forth in the tally as valid for and against the Petitioner. The Acting Director concluded that hearing was proper on this question. "Since, after the resolution of the other challenged ballots, McIntosh's ballot could affect the outcome of the election . . . ." The Employer excepts, contending that this amounts to a postelection challenge which is prohibited under N.L.R.B. v. A.J. Tower Company, 329 U.S. 324. We find no merit in the Employer's position, inasmuch as in the instant case McIntosh was challenged at a proper time before he received or cast his ballot. It may well be that, upon resolution of the 12 challenged ballots, the results will be so conclusive that it could not be said that the counting of McIntosh's ballot (if he was in fact ineligible) could have had any effect on the election. On the other hand, if the 12 be found eligible and their ballots be opened and counted, it is possible that a tie vote could results and, if McIntosh was ineligible and his ballot was improperly counted, his one ballot could have had a direct effect on the elections We believe it would be unjust to permit the election to stand if 9 If Yankauskas' ballot is a "no" vote , the result would he 35 for, and 49 against , the Union, with 12 challenges (and McIntosh's status) in question so the most the Union could receive would be 47 votes for, and 49 against. it, in which event McIntosh 's possible ineligibility could have no effect and a certification of results could be issued 4 Thelma Caligura , Richard Cary, Hernando Cortez. Jose Cortez, Loy Davis, Dennis Hahn , Gary Haroldson , Rex Kern, Billy Young, William Adair, Paul Gibson , and James Riddle its outcome would be affected by the ballot cast by an ineligible voter.? Accordingly, we shall direct that the hearing on challenged ballots, if held, include the issue of McIntosh's eligibility. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Regional Director for Region 21 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision and Order, open and count the ballot of Paul Yankauskas III and prepare and cause to be served on the parties a revised tally of ballots, including the count of the above-mentioned ballot. In the event the ballot of Yankauskas is determinative of the outcome of the election as shown by the revised tally, the Regional Director shall issue an appropriate certification in accordance with the Board's Rules and Regulations. However, IT IS FURTHER DIRECTED that, if the ballots of Thelma Caligura, Richard Carey, Hernando Cortez, Jose Cortez, Loy Davis, Dennis Hahn, Gary Harold- son, Rex Dern, Billie Young, William Adair, Paul Gibson, and James Riddle are sufficient in number to affect the results as shown by the revised tally of ballots, the Regional Director shall conduct a hearing, for the purpose of receiving evidence to resolve the issue raised by the said challenges, as well as on the question of the eligibility of Marvin McIntosh, before a Hearing Officer to be designated by said Regional Director. 11 IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the 12 challenges and as to the eligibility of Marvin McIntosh. Within the time prescribed by the Board's Rules and Regulations, any party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing 5 This would be so only if the 12 voters were found eligible and all votes were cast in favor of Petitioner. 6 Thus, if the result were 48 for, and 48 against, the Union, and if McIntosh's vote had been a "no" vote but was improperly counted, it is clear that but for this error the Union would have received a majority of the valid votes cast. 7 Cf McCormick Lumber Co, Inc, 206 NLRB No 78. THERMCO PRODUCTS CORP. 1151 Officer, and the Regional Director shall proceed in Director for Region 21 for further proceedings accordance with our decision herein. consistent herewith, including the arranging of such IT IS FURTHER ORDERED that the proceeding herein hearing, if necessary, and that said Regional Director be, and it hereby is, remanded to the Regional be, and hereby is, authorized to issue notice thereof. Copy with citationCopy as parenthetical citation