Cooper Supply Co.

National Labor Relations Board - Board Decisions

May 15, 1958

120 N.L.R.B. 1023 (N.L.R.B. 1958)

COOPER SUPPLY COMPANY 1023
in this proceeding.' Accordingly, we hereby deny the Employer's
motion to dismiss the instant petition.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The parties, which agree on a unit of truckdrivers, are in dispute
only as to the unit placement of the tire serviceman, Vernon Hale.
Hale has frequent contact with the truckdrivers in the course of his
tire repair and maintenance work. He receives the same hourly rate
of pay, attends the same safety meetings, and is under the same super-
vision as the truckdrivers. As his interests are allied to those of the
truckdrivers and he would otherwise be unrepresented, we shall include
the tire serviceman in the unit. Accordingly, we find that the follow-
ing employees of the Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act: All truckdrivers employed by Allen's, Inc., Wichita,
Kansas, including the tire serviceman, but excluding professional
employees, all other employees, guards, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Decision and Direction of Election.
7 Jonesboro Grain Drying Cooperative , 110 NLRB 481, 483-484.
Cooper Supply Company, Petitioner and Tulsa General Drivers,
Warehousemen , and Helpers , Local No. 523, International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America. Case No. 16-KM-155. May 15,1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by the
National Labor Relations Board on December 19, 1957 (not pub-
lished), an election by secret ballot was conducted on January 14,
1958, under the direction and supervision of the Regional Director for
the Sixteenth Region among the employees in the unit found appro-
priate by the Board. At the close of the election the parties were
furnished a tally of ballots which showed that there were approxi-
mately 10 eligible employees and that 11 ballots were cast, of which
120 NLRB No. 139.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
none were cast for the Union, 8 were cast against any labor organiza-
tion, 1 was void, and 2 were challenged. The challenged ballots were
insufficient in number to affect the results of the election.
On January 17, 1958, the Union filed objections to the conduct of
election ,and tally of ballots and asked that the election be set aside.
After investigation, the Regional Director, on February 18, 1958,
served upon the parties his report on objections to the election in which
he found that the objections were without merit and recommended
that they be overruled and the results of the election be certified. The
Union has filed timely exceptions to the Regional Director's report and
asked that a hearing be held.
The principal objections' we are now required to consider arise
from the fact that following a strike at this plant the Union 'filed
-charges accusing the Employer of illegally refusing to bargain. On
investigation the Regional Director found no merit in this charge and
refused to issue a complaint z The Union contended, nevertheless,
both at the hearing and in its objection to the election, that it should
be accorded an opportunity to prove, in this proceeding, that its strike
resulted from unfair labor practices and not from an economic dispute.
We ruled in the original direction of election, and we repeat here,
that allegations of unfair labor practices may not be litigated at any
stages of a representationproceeding.3 For purposes of this proceed-
ing, therefore, the strike'was over economic matters, the strikers were
not unfair labor practice strikers, and, as the Board found in the
original decision, they were ineligible to vote in the election because
all of them had been permanently replaced.
In view of this basic fact, we reject, as did the Regional Director,
the objections that : (1) The Union has not been afforded a chance in
this case to litigate the eligibility of the strikers as unfair labor prac-
tice strikers; (2) the Board agent improperly refused to permit those
same strikers-expressly found ineligible by the Board-to cast chal-
lenged ballots; and (3) the Board agent ought not to have explained
the Board's eligibility ruling-including the specific exclusion of these
strikers-to the assembled workmen before the election. It is the
Board agent's duty adequately to explain to the employees both the
election procedure and the Board's decision in the particular case ; he
is not required to issue ballots, even subject to challenge, for obviously
ineligible persons 4
1 The Union did not take exceptions to the Regional Director 's recommendation that the
Union 's other objections were without merit and that they be overruled To the extent
that such other recommendations stand without exceptions , they are hereby adopted pro
forma
2 On appeal to the General Counsel the Regional Director's dismissal of the charge was
upheld
s National Foundry Company of New Yo, h, Inc ., 109 NLRB 357 , 359; see Times
Square Stores Corporation , 79 NLRB 361, 365
4 one of the original objections was that the Board agent improperly refused to issue
it ballot to the union observer, Mr Stout. Stout was one of the original strikers found
COOPER SUPPLY COMPANY 1025
Another objection rests on the assertion that a supervisor acted as
an election observer for the Company. Liggett, the employee in ques-
tion, is a shipping and receiving clerk. None of his regular duties
are supervisory in nature and he has no authority over other employ-
ees. Each month, for 1 or more days, the Company hires extra casual
laborers and ordinarily obtains them by telephoning the Oklahoma
Unemployment Security Commission. After the strike started in
August 1957, that Commission refused to refer workmen because of
the labor dispute. In consequence, and as a stopgap arrangement,
since that time Liggett, the clerk, has driven to the Commission to
pick up extra help from those waiting in line outside the Commission.
His choice was determined by the sobriety and the physical fitness of
those in line. No such employees were used after the first of Decem-
ber. We agree with the Regional Director's conclusion that Lig-
gett's relation to the casual laborers was only a temporary expedient
and in view of the routine clerical nature of his regularly assigned
duties,' we find that he is not a supervisor within the meaning of the
Act. We therefore overrule this objection.
The Board refused to accept the Union's challenges to the ballots
of the countermen, order packer, janitor, dispatcher, and the shipping
and receiving clerk. The bargaining unit described in the Board's
decision reads : "All warehousemen, truckdrivers, porters, shipping
and receiving clerks, and helpers . . .," in accordance with the stip-
ulation of the parties to the preelection hearing. At that time the
Employer testified without contradiction that the job titles in its ware-
house operations included foreman, receiving clerks, dispatcher, truck-
drivers and helpers, countermen and order fillers, and the stockmen.
Like the Regional Director, we find no merit in the Union's objection
that the election was improperly conducted because the Board agent
refused to accept these challenges. He was under no obligation to
accept promiscuous challenges.
The Union also alleged that two employees loitered around the vot-
ing area after casting their ballots and were in a position to be able
to converse with others waiting to vote and thus could have election-
eered near the polls. The Regional Director found that two voters
did not immediately quit the area after voting, but did so, at once,
upon the request of the Board agent. He concluded that the presence
of these two voters within the polling area for so short a period of
time was insufficient grounds to set aside the election in the absence of
any evidence of, electioneering. We agree and overrule this objec-
tion also.
ineligible in the Board's original decision.' The Union excepted to the Regional Director's
failure to consider this specific objection in his report. This exception is clearly without
merit because as one of the permanently replaced economic strikers, Stout was not en-
titled to a ballot
483142-59-vol. 120--06
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the Union contends that the eligibility list was improper
because the company attorney challenged its accuracy just before the
voting began, and that the tally of ballots as originally made out was
.fatally defective because it showed only 10 ballots issued when in fact
41 were used, and it stated that a majority of ballots had been cast
for, the "Employer and, Petitioner," instead of against any labor
,organization. The Regional Director found that the company man-
ager ,noticed the 11 employees in line to vote when only 10 names
were on the eligibility list and upon checking notified the Board agent
of the name of the employee whose name had been omitted from the
list. There is no allegation that this employee did not properly belong
'in the unit. The tally of ballots was corrected on January 17, 1958,
by the issuance of an amended tally of ballots. Like the Regional
Director we find no merit in any of these objections; in any event we
also agree with the Regional Director's conclusion that any possible
temporary inaccuracy of this type on the tally sheet could not have
.interfered with the election because the sheet was not made out until
after the ballots were counted.
Accordingly, we adopt the Regional Director's recommendation that
none of the objections or exceptions raise material or substantial issues
respecting the results of the election. In view of the foregoing, we
also deny the Union's request for a hearing. As the Union has failed
to secure a majority of the ballots cast we shall certify the results of
the election.
[The Board certified that a majority of the valid ballots was not
cast for Tulsa General Drivers, Warehousemen and Helpers, Local
No. 523, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, and that this Union is not the ex-
clusive representative of the employees at the Employer's Tulsa, Okla-
homa, plant in the unit found to be appropriate.]
CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the con-
-sideration of the above Supplemental Decision and Certification of
Results of Election.
Barrett Division , Allied Chemical & Dye Corporation and United
Cement, Lime and Gypsum Workers International Union, AFL-
CIO, Petitioner . Case No. 22-RC-120. May 16,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
labor Relations Act, a hearing was held before Leonard Bass, hearing
120 NLRB No. 138.