Clark Shoe Co.

National Labor Relations Board - Board Decisions

May 23, 1949

83 N.L.R.B. 782 (N.L.R.B. 1949)

In the Matter of CLARK SHOE COMPANY and UNITED SHOE WORKERS
Or AMERICA, CIO
Case No. 1-RC,-9398
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
May 23,1949
On July 21, 1948, pursuant to a Decision and Direction of Election
issued by the Board on June 23, 1948, an election by secret ballot was
conducted under the direction and supervision of the Regional Direc-
tor for the First Region among the employees in the unit found appro-
priate in the Decision. • Thereafter a Tally of Ballots was furnished,
the parties.
The tally shows that there were approximately 624 eligible voters
and that 602 cast ballots, of which 2 were void, 302 were for the
Petitioner, 28 for the Intervenor, 257 for neither, and 13 were chal-
lenged.
On July 28, 1948, the Employer filed Objections to the Conduct of
the Election. On August 30, 1948, the Regional Director filed his
Report on Objections, recommending that the objections be overruled,
to which the Employer filed exceptions.
On November 2, 1948, the Board having considered the Employ-
er's objections, the Regional Director's Report on Objections, and the
.Employer's exceptions thereto, found that objections Nos. 2 and 3
raised material and substantial issues with respect to conduct affecting
the results of the election, and consequently ordered a hearing upon
these objections' A hearing was held on December 1 and 2, 1948,
before David C. Sachs, hearing officer. All parties appeared and par-
1 This order directed the hearing officer to make findings and recommendations in this
matter . The Employer has objected to this procedure , and filed a Motion to. Disregard
Report of Hearing Officer. The motion is hereby denied Matter of Minnesota Mining &
Manufacturing Company, 81 N. L. R. B. 557; Matter of Southeastern Industries Incorpo-
rated, 82 N. L. R. B. 209.
83 N. L. R. B., 119.
.782
CLARK SHOE COMPANY 783
`ticipated. IIi accordance with the order of the Board, the hearing
'officer issued and caused to be served upon all parties a report dated
March 7, 1949, a copy of which is attached hereto, in which he recom-
mended that the Employer's objections be overruled. Thereafter, the
Employer filed exceptions to the hearing officer's report 2
The Board 3 has reviewed the rulings made by the hearing officer
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the hear-
ing officer's report the Employer's exceptions and the entire record in
the case, and hereby adopts the hearing officer's findings and recom-
mendations. Accordingly, we overrule the Employer's objections.
As the Petitioner, United Shoe Workers of America, CIO, has ob-
tained a majority of all the ballots cast we shall certify the Petitioner
as the exclusive bargaining representative in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that United Shoe Workers of America, CIO,
has been selected by a majority of the employees of Clark Shoe Com-
pany, Lewiston, Maine, in the unit heretofore found by the Board to
be appropriate, as their representative for the purposes of collective
bargaining, and that, pursuant to Section 9 (a) of the Act, as amended,
the said organization is the exclusive representative of all such em-
ployees for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
REPORT OF HEARING OFFICER
Maurice Epstein , Esq., of Gordon and Epstein of Boston , Mass., for the
Employer.
Frederick Cohen, Esq ., of Grant and Angoff of Boston, Mass., for the Petitioner.
Frank Ti'. Linnell , Esq, of Auburn , Maine, for the Intervenor.
Robert E. Greene, Esq ., of Boston , Mass., for the Board.
Upon a petition filed pursuant to Section 9 (c) of the Act, the Board on June
23, 1948 entered an order directing the Regional Director for the First Region
to conduct an election among certain employees of the Employer . An election
was conducted pursuant to this order on July 21, 1948 to determine whether
such employees desired to be represented for the purposes of collective bargaining
by United Shoe Workers of America, CIO (hereinafter referred to as the
Petitioner), or by Lewiston-Auburn Shoe Workers' Protective Association
2 The Employer ' s request for oral argument is denied , as the record and the Employer's
brief, in our opinion, adequately present the issues and positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Murdock and Gray].
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(hereinafter referred to as the Intervenor and sometimes referred to in the
record as LASPA), or by neither. The Tally of Ballots shows the following:
Approximate number of eligible voters----------------------- 624
Void ballots----------------------------------------------- 2
Votes cast for Petitioner----------------------------------- 302
Votes cast for Intervenor----------------------------------- 28
Votes cast for Neither------------------------------------- 257
Valid votes counted---------------------------------------- 587
Challenged ballots----------------------------------------- 13
Valid votes counted plus challenged ballots------------------ 600
Thereafter on July 28, 1948, the Employer filed the following objections to
the conduct of the election.
(1) The agent in charge of the election refused to determine the number
of employees who had voted by counting the number of names checked as
having voted on the eligibility list for the purpose of comparing this total
with the number of ballots counted.
(2) There were blank ballots in the voting booths several times during the
voting.
(3) The ballot box was left unattended on several occasions during the
voting.
On August 30, 1948, the Regional Director filed his Report on Objections recom-
mending that the objections be overruled to which the Employer filed exceptions.
By Order dated November 2, 1948, the Board entered an order directing that a
hearing be conducted on the issues raised by Objections (2) and (3).
Pursuant to notice a hearing was conducted on December 1 and 2, 1948 at
Lewiston, Maine before the undersigned, David C. Sachs, who was duly desig-
nated to conduct a hearing for the above-named purpose by the Regional Di-
rector. The Employer, the Petitioner, the Intervenor and the Board were rep-
resented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the close of the hearing the parties
argued orally before the undersigned and were afforded an opportunity to file
briefs on or before December 17, 1948. The Employer filed such a brief which
has been considered by the undersigned.
Findings of Fact and Recommendations
1. Objection No. 3.-"The ballot box was left unattended on several occasions
during the voting."
The election involved herein was conducted on July 21, 1948 between the
hours of 9: 30 a. m. and 1: 30 p. m. The polling place was located in a rectangu-
lar area on the first floor of the Company's building. As a voter entered the
area the checking table at which he was identified and given a ballot was located
to his right. Opposite him and along a wall and against windows facing the
street were three voting booths. To his left, directly opposite the checking table,
and approximately 24 feet therefrom, was the ballot box which was placed upon
a wooden crate. A separate exit was provided near the ballot box.
From the opening of the polls until approximately 11: 30 a in. the voters were
released by departments on a staggered schedule. During this period the voting
was rather heavy and constant. By 11: 30, all of the voters who had been re-
leased by departments had already voted and between the hours of 11: 30 and
CLARK SHOE COMPANY 785
1:30 when the polls closed , a relatively small number of persons cast ballots.
The testimony shows that this number did not exceed seventeen persons.
The Board agent who conducted the election on behalf of the Regional Di-
rector was assisted by two sets of three observers , each of whom represented the
interested parties, namely , the Employer , the Petitioner and the Intervenor.
During the period prior to approximately 11: 30, a set of three observers , namely,
Irene Madore for the Employer , Helen Cloutier for the Intervenor , and Ralph L.
Cote for the Petitioner, were seated directly behind the ballot box . It was their
function to observe the ballot box and to see that the ballots were properly de-
posited in the slot . During the same period another group of three observers,
namely, Florence Machkowsky ( sometimes referred to in the record as Florence
Mac or Mack ) for the Employer , Belle Hartford for the Intervenor, and Marcel
Poulin for the petitioner , was stationed at the checking table. They assisted
in identifying the voters , and Miss Machkowsky drew a line through the names
on the eligibility list when the voters were handed ballots.
By approximately 11: 30 a. m. it became apparent that nearly all of the
eligible employees had already voted. Accordingly, the Board agent permitted
each observer to relieve his or her opposite number for the purpose of having
lunch. This was done between approximately 11: 30 a. in. and approximately
12: 30 p. m. At all times during this hour there was at least one observer at
the polling place representing each interested party. When there was one set
of observers, they took their stations at the checking table. As stated above, this
was directly opposite and in full view of the ballot box approximately 24 feet
distant. It is estimated that no more than five persons voted during this hour
including some of the observers . After approximately 12: 30 , all of the observers
had returned from lunch and remained in the polling place until the close of the
polls except that Florence Machkowsky, observer for the Company, left at about
1 p. in. to go back to her usual work. During the period from 12: 30 p. m. to
the close of the polls, the observers assumed the same stations as they did
during the early part of the election except that Irene Madore took the place
of Florence Machkowsky as Employer observer at the checking table. Cote and
Cloutier as before were assigned to the ballot box. However , in view of the
fact that the voting was very sparse , they did not remain closely adjacent to
the ballot box as they had done during the early part of the polling but
instead , when no one was voting, engaged in casual conversation with one
another or with the other observers in the voting area. When a person came
in to vote they resumed their stations immediately behind the ballot box until
the vote had been cast.
On the basis of the foregoing the undersigned does not find that the ballot box
was improperly left unattended during the course of the election and recommends
that Objection No. 3 be overrruled.
II. Objection No. 2.-"There were blank ballots present in the voting booths
several times during the voting."
Hazel Cleveland , a top stitcher employed 6y the Employer, testified that
when she voted , at approximately 10 a. m ., she saw what she described as
"three or four ballots that would be folded altogether laying at the left of me"
in the center booth. On cross-examination , however , it appeared that she did
not examine the papers referred to nor see any writing or printing on them
but that what she saw were pieces of paper with the fold toward her of approxi-
mately the same,size and color as the ballots used in the election.
Leona Filliettaz , a skiver employed by the Employer , testified that when she
marked her ballot in the center booth, at approximately the same time, she saw -
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the booth what she positively identified as ballots which were used in the
election.'
Although 602 votes were cast in the election including the votes of the other
employees in the stitching room who voted at the same time as Cleveland and
Filliettaz and although the Employer posted a botice immediately after the elec-
tion requesting all employees to report any irregularities in the election which
might have been observed, no other testimony was offered tending to show that
there were blank ballots in the voting booths during the election. Board Agent
Fenton testified without contradiction that on three occasions during the election
he examined the voting booths and found everything in order. He further testi-
fied that at all times between his departure from and return to the office he had
the blank ballots in his sole custody and possession.
The undersigned finds that during the period prior to 11: 30 a. in., it would
have been impossible for anyone to have deposited more than one ballot in the
ballot box without detection unless the ballots were so folded together as to
resemble one ballot. With respect to this latter possibility, all four persons
who participated in the opening up and counting of the ballots, including ob-
servers for all parties, testified uniformly that in no instance was there more
than one ballot folded together.
At the hearing the Employer offered testimony for the purpose of showing
that more ballots were cast at the election than the number of persons who had
voted or that there was a strong possibility that this had occurred. The under-
signed permitted an inquiry along this line upon the ground that it might have
a material bearing upon the Employer's Objection No. 2 if it should be found that
there were blank ballots in a voting booth. Although, as appears more fully
below, the undersigned does not so find, a resolution of the claims advanced by
the Employer will in all probability be in order.
The list of names furnished by the Employer which was used at the election
contains 634 names .8 Of these, 595 have a line drawn through them in red
I The undersigned regards the witness Cleveland as honest and sincere . The undersigned
does not, however, credit the testimony given by the witness Filllettaz in view of the fact
that her testimony is contradicted in important respects by an affidavit which she had
previously furnished to a Board agent, because of her pronounced extreme bias against the
Petitioner , and also because of other testimony given by her which is so exaggerated as to
defy belief . The ballots used in the election were pink in color and a sample ballot was in
evidence at the time when Filliettaz testified . In the affidavit referred to above, given on
August 5, 1948, in no less than three places she identified the ballots which she claimed to
have seen as white in color . In one place she stated , "of that I am sure" and in another
that she was "positive they were white." In addition to her eagerness in criticizing the
manner in which the observers stationed at the ballot box were watching it, Filliettaz
testified that she saw two girls enter the voting area with blank ballots in their pockets
and, further , that she observed one of the two girls placing two ballots in the ballot box.
The undersigned , on the basis of the entire record , is constrained to reject this testimony
and is further of the opinion that the witness could not have seen whether more than one
ballot was deposited in the ballot box by a voter from the place where the witness testified
she was standing at the time.
The record shows that the Intervenor distributed a piece of campaign literature which,
when folded , closely resembled a ballot in size and color . The Petitioner also circulated a
mimeographed flyer , white in color, which contained a sample ballot . It is possible for
someone not familiar with N. L. R. B . ballots at a quick glance to mistake either of these
documents for a ballot.
7 Board Agent Fenton ; Belle Hartford , observer for the Intervenor ; Irene Madore,
observer for the Employer ; and Marcel Poulin , observer for the Petitioner.
' The Tally of Ballots contains the figure "624" beside the entry "Approximate Number
of Eligible Voters." Shortly before the close of the polls , Board Agent Fenton requested
Irene Madore, Employer observer, to total the number of eligible voters. Apparently
CLARK SHOE COMPANY 787
crayon indicating that they had voted. To these must be added the two voters
on the supplementary list furnished by counsel for the Employer on July 16,
1948, who cast challenged ballots and five other voters whose names do not
appear on the list but who likewise cast challenged ballots. A total of 602 per-
sons, therefore, are shown to have voted. The tally shows that a total of 602
votes were cast including the two void ballots. Thus, the number of ballots
cast coincides exactly with the number of voters.'
The undersigned does not find that there were blank ballots in the voting booths
during the election. The undersigned further finds that the number of ballots
cast did not exceed the number of persons who voted in the election and that the
record does not show that any ballots found their way into the ballot box other
than those properly cast by the voters. The undersigned recommends that the
Company's Objection No. 2 be overruled.
Pursuant to the Order of the Board, any party may within five (5) days of the
receipt of the within report file with the Board in Washington, D. C., an original
and six copies of exceptions thereto. Immediately upon the filing of such excep-
tions, the party filing them shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director for the First Region.
Dated at Baltimore, Maryland, this 7th day of March, 1949.
DAvin C. SACas, Hearing Officer.
taking this request literally, Miss Madore in making the count eliminated the persons
whom she regarded as ineligible to vote and arrived at the figure of "624." Fenton used
this figure in making the entries on the tally form. To the extent that this figure purports
to represent the total number of names on the list furnished by the Employer, it is in-
correct and the parties have stipulated that this list contains 634 names. The Em-
ployer's claim of an excess of ballots stems from the figure of 624 contained in the tally.
Shortly before the close of the polls an Employer observer made an informal count of 36
names of persons on the list who had not voted. The Employer urges that this shows
that 588 persons voted as against 602 ballots. This computation is erroneous, however,
for, as is pointed out more fully infra, the number of names on the list is 634 rather than
624 and for the further reason that seven persons not on the list (including the two on
the supplementary list) voted and cast challenged ballots
The Employer urges that the computation given above cannot be relied upon as
accurate because of certain testimony tending to show that some names were crossed off
even though the persons did not vote. Irene Madore, a pay-roll checker employed by the
Employer and an Employer observer during the election, testified that in the cases of
persons whom she regarded as ineligible , she either marked " all thru" beside their names
or placed a cross in red crayon beside their names on the list furnished by the Employer.
In addition, she testified that she drew a red crayon line through the names of such
persons as in the case of persons who obtained ballots and voted. The undersigned does
not accept the last-mentioned portion of her testimony as reliable . For one thing, Miss
Madore was stationed at the ballot box during the period prior to 11 : 30 a. in. when nearly
all of the voting had taken place and was not at the checking table. Florence Machkowsky,
the Employer 's pay-roll clerk, who was at the checking table, did not testify in this
regard . Secondly, an examination of the list used at the election does not bear the
testimony of Miss Madore out on this point. Such an examination discloses numerous
instances of names marked "all thru" or with a red cross which do not have lines drawn
through them . Furthermore , the instances cited by Madore of persons whose names were
crossed out but who did not vote do not coincide with her testimony. She mentioned
as examples three names in all . In the case of two of these names, Lucille G. Guenet
and her husband , Joseph R . Guenet (Payroll No . 3-150 ) the names are not in fact
crossed out . With respect to the third name, Leapoldine Paquin , the name is crossed out.
It appears , however, that this person in fact voted and her ballot was challenged.