E-Z Way Towers, Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1958

121 N.L.R.B. 1175 (N.L.R.B. 1958)

E-Z WAY TOWERS, INC. 1175
E-Z Way Towers , Inc. and Teamsters, Chauffeurs and Helpers
Local Union No . 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Peti-
tioner. Case No. 12-RC-310. October 2, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board herein on July 22, 1958,1 an election by secret ballot was con-
ducted by the Regional Director for the Twelfth Region among the
employees in the appropriate unit. At the close of the election a tally
of ballots was furnished the parties. The tally shows that there were
approximately 6 eligible voters, of whom 3 voted for the Petitioner,
2 voted against the Petitioner, and 1 cast a void ballot. Thereafter,
the Employer timely filed objections to the conduct of election. The
Regional Director investigated the objections and on August 28, 1958,
issued and duly served upon the parties a report on objections in
which he recommended that the objections be overruled and the
Petitioner certified as collective-bargaining representative. There-
after, the Employer filed timely exceptions to the Regional Director's
report.
The Board 2 has considered the hearing officer's report, the excep-
tions, and the entire record in the case and hereby makes the following
findings :
The Employer objected to the counting of one ballot which had
a check mark instead of a cross in the "Yes" box and to the voiding
and not considering of another ballot which had horizontal pencil
marks in both the "Yes" and the "No" boxes. In its exceptions, the
Employer contends that the void ballot should be counted as a valid
ballot although neither for nor against the Petitioner, that the Peti-
tioner has not secured a majority of the votes cast in the election, and
the petition should therefore be dismissed.
We agree with the Regional Director, and find, that the ballot with
the check mark instead of the cross in the "Yes" box was a valid
ballot and that the ballot with horizontal lines in both "Yes" and
"No" boxes was void. Further, the Board has long held with court
approval that a void ballot is not to be counted for any purpose?
Accordingly, as the Petitioner has secured a majority of the valid
' Unpublished.
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 [ Members Rodgers, Bean,
and Fanning].
s Semi-Steel Casting Company, 66 NLRB 713, 715 and cases cited therein.
121 NLRB No. 151.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
votes cast in the election, we shall certify it as the collective-bargain-
ing representative of the employees in the appropriate unit.
[The Board certified Teamsters, Chauffeurs and Helpers Local
Union No. 79, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the designated collective-
bargaining representative of employees of _E-Z Way Towers, Inc.,
Tampa, Florida, in the unit heretofore found appropriate.]
International Association of Machinists, Local Lodge No. 311,
AFL-CIO; International Association of Machinists , District
Lodge No. 94, AFL-CIO; and International Association of
Machinists, AFL-CIO and Machinery Overhaul Company,
Inc. and Southern Pacific Company . Case No. 21-CB-982.
October 3, 1958
DECISION AND ORDER
On April 28,1958, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case and
hereby adopts the findings,' conclusions, and recommendations 2 of
the Trial Examiner.
1 In the Intermediate Report the Trial Examiner erroneously reported that on Novem-
ber 28, 1956 , the Company offered to reinstate the strikers and to accept a modified
union-security provision limited to the employees on the Company's payroll as of Septem-
ber 18, 1956 , and that the Respondents did not accept this proposal. The record shows
that this proposal was made by the Respondents rather than by the Company. The
Intermediate Report is hereby corrected accordingly , We find that this error has no
bearing on the issue in this case and on its disposition.
2 In the Intermediate Report the Trial Examiner recommended that the Board petition
the appropriate United States District Court for an injunction pursuant to Section 10 (j)
of the^Act in the event that the Respondent Unions should fail to cease and desist from
the unfair labor practices found by him. We do not believe that it was within the
province of the Trial Examiner to make such recommendation . We do not adopt it.
121 NLRB No. 153.