Thermco Products Corp.

National Labor Relations Board - Board Decisions

Apr 8, 1974

209 N.L.R.B. 1149 (N.L.R.B. 1974)

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.