Burrows & Sanborn, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1949

84 N.L.R.B. 304 (N.L.R.B. 1949)

In the Matter of BURROWS & SANBORN, INC., EMPLOYER and RETAIL
CLERKS INTERNATIONAL ASSOCIATION A. F. OF L., PETITIONER
Case No. 1-RC-794
SUPPLEMENTAL DECISION
AND
DIRECTION
June 14, 1949
Pursuant to a Decision and Direction of Election issued by the
National Labor Relations Board on March 9,1949,1 an election by secret
ballot was conducted on March 30, 1949, under the direction and super-
vision of the Regional Director for the First Region, among the em-
ployees of the Employer in the.unit found appropriate by the Board.
Following the election, the parties were furnished with a Tally of
Ballots. The tally shows there were approximately 135 eligible voters
and that 142 valid ballots were cast, of which 58 were for the Petitioner,
58 against the Petitioner, and 26 were challenged. On April 6, 1949,
the Employer filed objections to the conduct of the election.
As the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director investigated the chal-
lenges, as well as the Employer's objections, and on May 5, 1949, issued
and duly served on. the parties' his report on the objections and the
challenged ballots. The Regional Director recommended that the
'objections be overruled, that the challenges to 10 ballots be sustained,
and the challenges to 16 ballots be overruled. Thereafter, the Em-
ployer filed exceptions to so much of the Regional Director's report as
recommended that the objections to the conduct of the election and the
challenges, to 12 ballots be overruled and the challenge to 1 ballot be
sustained.
The objections to, the conduct of the election
The Employer objects to the conduct of the election and urges that
the election be set aside for two reasons : (1) the person designated by
the Employer was not permitted to act as observer at the election ; and
' 81 N. L . R. B 1308.
84 N. L. R. B., No. 35.
304
BURROWS & SANBORN, INC. 305
(2) the Employer's observers were not allowed to challenge voters'.
eligibility after the ballots were marked, but were directed to make any
challenges before such voters marked their ballots.
The Regional Director's report shows that on March 21, 1949, at
a conference of the parties called for the purpose of arranging the de-
tails of the election, counsel for the Employer designated Laura Ricker
as observer for the Employer. The Petitioner objected to Miss Ricker
on the ground that she was a supervisor and, as such, was ineligible
to serve as observer. It was then suggested that Dorothea O'Keefe
and Marian Beaulieu, personnel clerks, be designated as observers for
the Employer. Both parties agreed to the suggestion and the named
individuals were appointed observers and represented the Employer
at the election. The Employer now contends that Laura Ricker is
not a supervisor as defined in the National Labor Relations Act and
that the individuals appointed as observers for the Employer were
not properly qualified by age and experience to act as observers. The
Employer does not, however, allege in its exceptions : that its counsel
was not authorized to agree to the selection of O'Keefe and Beaulieu
as observers for the Employer; that these persons did not adequately
represent the Employer at the election; or that any prejudice to the
Employer resulted from their designation as observers.2
An employer does not have an absolute right to appoint observers
in a Board-conducted election.3 Board Rules permit parties to be
represented at an election by observers of their own selection, but
subject to such limitations as the Regional Director may prescribe .4
It is established Board policy that supervisors may not act as observers
for an employer.5 Consequently, when in this case objection was made
that the individual designated by the Employer was a supervisor, it
was proper for the Regional Director's representative to suggest that
other persons be appointed as observers without first conducting an
investigation as to whether or not the Employer's appointee was, in
fact, a supervisor.g
The Employer's second objection also relates to the mechanics of
the election. The Employer contends that there is no regulation
3 See Matter of Tri -Cooties Broadcast Company, 74 N L. R B. 1107, 1109.
3 Matter of The Union Switch & Signal Company, 76 N. L. R. B 205, 211; Matter of
The Shenango Furnace Company, 62 N. L. R. B. 1231 , 1233; Matter of Harry Manaster &
Bro., 61 N . L. R. B. 1373, 1374 ; Marlin-Rockwell Corporation v. N. L. R. B., 116 F. (2d)
586, 587 (C. A. 2).
* Rules and Regulations-Series 5, Section 203.61.
5 Matter of Hoague Sprague Corporation, 80 N. L . R. B.' 1699; Matter of Harry
Manaster & Bro., footnote 3, supra; Matter of Paragon Rubber Co , 7 N. L. R. B. 965, 966.
6 Cf Matter of Worcester Woolen Mills Corporation , 69 N. L. R B. 425 ; 74 N. L. R B.
1071 ; enfd. N. L. R B. v. Worcester Woolen Mills Corporation, 170 F . ( 2d) 13 (C. A 1),
certiorari denied, 336 U S 903.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which requires challenges to be made before rather than after the
ballots are marked , and that the Regional Director , by adopting the
former procedure at the election herein, adversely affected the Em-
ployer's exercise of its right of challenge . It contends that the voicing
of challenges before the ballots are marked antagonizes the challenged
voters. However, the procedure followed in this case was the cus-
tomary procedure generally employed in Board elections . The Board
has found that challenging voters whose eligibility is questioned before
they mark their ballots is more facile and practical than requiring chal-
lenges to be made after such ballots are marked . We do not believe
that such procedure interferes with employees ' free selection of bar-
gaining representatives.
We find, therefore , that the Employer 's objections do not raise sub-
stantial and material issues with respect to the conduct of the election.
Accordingly , the objections are hereby overruled.
The challenged ballots
Twenty-six ballots cast at the election were challenged : 22 by the
Employer, and 4 by the Petitioner . The Petitioner challenged the
ballots of Jean Hartwell , Herbert Clark, Helen Bachorowska, and
Howard Bacon on the grounds that the first 3 named employees are
supervisors and that the last named employee is a guard . The Regional
Director recommended that the challenges to these ballots be over-
ruled. Because no exceptions have been filed to the Regional Director's
finding with respect to these 4 employees , we shall adopt the Regional
Director 's recommendation that the challenges be overruled and direct
that their ballots be counted.
The Employer challenged the ballots of Ethel Condon, Edward
Cate, Jessie Innocenti , Madeline Huff, Marion Tyler, Margaret Niland,
Mary Kiley, Clara Tobin, and Amelia Cate. The Regional Director
recommended that the challenges to these ballots be sustained. Be-
cause no exceptions have been filed to the Regional Director 's findings
with respect to these nine employees , we shall adopt the Regional
Director 's recommendations and sustain the challenges to such ballots.
The Employer challenged the ballots of the following 10 employees :
Muriel McGann , Elizabeth Jolly, Genevieve Christopher, Irene
Couturier , Madeline Liberatti , Eleanor Traviscio , Beverly Keating,
Olive Gustafson, Mae Reid, and Mary Glebus . The reason advanced
for these challenges is that the named employees are part-time em-
ployees who work less than 17 hours per week and that an agreement
was made at the hearing to exclude such employees from the unit.
The Regional Director recommended that the challenges to these
ballots be overruled , because the record does not support the Em-
BURROWS & SANBORN, INC. 307,
ployer's contention that an agreement was made to exclude such em-
ployees from the bargaining unit and because the Board specifically
included them in the appropriate unit in its Decision and Direction
of Election. In its exceptions to the Regional-Director's report and
in its subsequent motion for a hearing on the issues raised by its
challenges to these ballots, the Employer repeats its contention that
an agreement was made to exclude part-time employees working less
than 17 hours per week. It further asserts that if the Board de-
termines that such agreement was not in fact made, then it was misled
into believing that such agreement had been reached and consequently
omitted to offer proof to show that these employees should not have
been included in the unit.
The Employer states that, if given an opportunity, it will offer
evidence to prove that 8 of these 10 challenged employees work only
5 hours per week, that they are high school students earning approxi-
mately $2.50 to $3 per week, that they do not share many employee
benefits with the other employees, and that there is a high rate of
turn-over in the employment of students. The record does not clearly
establish any agreement between the Employer and the Petitioner to
exclude these part-time employees from the unit. In any event, an
agreement between the parties to a representation proceeding with
respect to exclusions and inclusions from the appropriate unit is not
binding upon the Board. The Employer suffered no prejudice by
failing to offer the aforesaid evidence at the hearing, because it has
been the Board policy ordinarily to include regular part-time em-
ployees in appropriate bargaining units and to allow such employees
to cast ballots in representation elections although they may be high
school students.7 Accordingly, the challenges to these ballots are
overruled and the Employer's motion for a hearing is hereby denied.
The Employer challenged the ballots of Marie Connors and Nellie
Dagenais on the ground that these individuals were not employees on
the eligibility date. The Regional Director found that on such date
they had been temporarily laid off and recommended that the chal-
lenges to their ballots be overruled. The Employer excepts to these
findings of the Regional Director, contending that these individuals
had been permanently laid off.
The Regional Director's report states that the ballot of Mary Gun-
derman was challenged by the Employer on the ground that she was
a casual employee of the Employer. The Regional Director recom-
mended that the challenge to this ballot be sustained. The Employer,
T Matter of John Janowski, et al, '81 N L R B 216; Matter of Florshe,m Retail
Boot Shop, 80 N. L. R B. 1312, Matter of Inter-Mountain Telephone Company, 79
N L R. B 715
308 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD
in its exceptions, states that it did not challenge the ballot of Mary
Gunderman.
Because issues of fact are raised by the Employer's exceptions to
the Regional Director's report with respect to the challenges of the
ballots of Marie Connors, Nellie Dagenais, and Mary Gunderman, we
shall at this time make no determination regarding the validity of
these ballots. We shall direct that the ballots, the challenges to
which have been overruled, be opened and counted. If, after a new
Tally of Ballots is prepared, it is found that the ballots of Connors,
Dagenais, and Gunderman can affect the outcome of the election, we
shall then order a hearing to resolve the issues of fact with respect
to these challenges.
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Burrows & Sanborn,.Inc., of
Lynn, Massachusetts, the Regional Director for the First Region
shall, pursuant to the National Labor Relations Board Rules and
Regulations, within 10 days from the date of this Direction, open and
count the ballots of Muriel McGann, Elizabeth Jolly, Genevieve
Christopher, Irene Couturier, Madeline Liberatti, Eleanor Traviscio,
Beverly Keating, Olive Gustafson, Mae Reid, Mary Glebus, Jean
Hartwell, Herbert Clark, Helen Bachorowska, and Howard Bacon,
and thereafter cause to be served upon the parties a Supplemental
Tally of Ballots, including therein the count of such challenged
ballots.
MEMBERS HOUSTON and GRAY took no part in the consideration of
the above Supplemental Decision and Direction.