Everbest Engineering Corp.

National Labor Relations Board - Board Decisions

Jul 18, 1952

100 N.L.R.B. 264 (N.L.R.B. 1952)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the Petitioner has not fulfilled its obligation to present timely evi-
dence in support of its objection, the Board will not consider such ob-
jection 4 Moreover, this objection is in the nature of a post-election
challenge which, as a matter of policy, the Board will not entertain."
Accordingly, we shall, in agreement with the Regional Director,
overrule the objections.
As we have overruled the Petitioner's objections, and as the tally
of ballots shows that no collective bargaining representative has been
chosen, we shall dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
° See Southern Wood Preserving Co., supra.
See John Deere Kiilefer Co.. 86 NLRB 1073.
EVERBEST ENGINEERING CORP. and AMALGAMATED MACHINE, INSTRII-
MENT AND METAL LOCAL 475, UNITED ELECTRICAL, RADIO AND
MACHINE WORKERS OF AMERICA, PETITIONER. Case No. O-RC-3500.
July 18,1952
Supplemental Decision and Direction
Pursuant to a Decision and Direction of Election issued by the
Board on June 26, 1951,1 an election by secret ballot was conducted
on July 19, 1951, under the direction and supervision of the Regional
Director for the Second Region, among the employees in the unit
found appropriate in said Decision.
Following the election, the parties were furnished a tally of ballots
which shows that there were approximately 70 eligible voters and that
67 ballots were cast, all of which were challenged. These challenges
are, of course, sufficient in number to affect the results of the election.
Thereafter, the Regional Director investigated the issues raised by
the challengers, and on April 30, 1952, issued his report on challenges,
in which he recommended that the challenges to the ballots of 41
voters be sustained, and that the challenges to the remaining 26 ballots
be overruled. The Petitioner filed exceptions to the report on
challenges.
The mass challenges in this case are explained by the fact that at
the time of the election there were pending against the Employer
unfair labor practice charges which put in issue the eligibility of all
I Unpublished.
100 NLRB No. 47.
EVERBEST ENGINEERING CORP. 265
the persons who cast ballots. The individuals who cast the 67 chal-
lenged ballots fall into 3 categories, (1) a group of 17 former em-
ployees laid off on March 30, 1951, and subsequently discharged on
April 16, 1951; (2) a group of approximately 29 employees who
went out on strike on April 2, 1951, and failed to return to work after
appropriate notice by the Employer on April 2 and 3, 1951; and (3)
a group of 26 employees who were on the Employer's payroll as of
the eligibility date established by the Board's Decision and Direction
of Election, and at work on the date of the election. None of the
individuals in groups (1) and (2) was on the Employer's payroll at
the time of the election, July 19,
The then pending charges filed by the Petitioner on May 28, 1951,2
alleged that the Employer had unlawfully discriminated against the
employees in groups (1) and (2) by refusing to reinstate them. After
duly investigating the charges, the Regional Director, on November
23, 1951, refused to issue a complaint. Upon appeal by the Petitioner,
the General Counsel, on February 18, 1952, upheld the Regional
Director's determination.
As the General Counsel concluded that there was insufficient evidence
to support the' Petitioner's allegation of discrimination respecting
the employees in groups (1) and (2), the necessary effect of his
finding is that they were no longer employees of the Employer at the
time of the election. The burden of the Petitioner's contention in
this proceeding, in which it asserts the eligibility 'of these same per-
sons, is that they were employees on that date. But, as the Board
has heretofore held, in a representation proceeding we may not reach
a conclusion tantamount to an unfair labor practice finding diametri-
cally opposed to the conclusion reached by the General Counsel on
the same set of facts, and, indeed, upon virtually the same investiga-
tion.' We conclude, therefore, as we must, and in agreement with
the Regional Director, that the employees in groups (1) and (2)-
listed on schedule A attached hereto-were not eligible to vote in the
July 19, 1951, election. Accordingly, we hereby sustain the challenges
to their ballots.
The employees in group (3) were employed at the time of the
election and met the eligibility requirements set out in the Direction
of Election. The Petitioner attacks their eligibility on the ground
that they were hired only as temporary replacements for the
strikers. However, the above finding by the General Counsel, that
the strikers were not unlawfully denied reinstatement, effectively
and conclusively rebuts this assertion. Like the Regional Director,
therefore, we find that the employees in group (3) -listed on schedule
2 2-CA-1980.
3 Times Square Stores Corporation , 79 NLRB 361.
266 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
B attached hereto-were eligible, voters and we hereby overrule the
challenges to their ballots. Accordingly, we shall direct that the
ballots be opened and counted.
Direction
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Everbest Engineering Cor-
poration, New York City, the Regional Director for the Second Region
shall, pursuant to the Rules and Regulations of the Board, within
ten (10) days from the date of this Direction, open and count the
ballots of the 26 employees listed in schedule B attached hereto, and
thereafter prepare and cause to be served upon the parties a supple-
mental tally of ballots, including the count of said challenged ballots.
MEMBERS STYLES and PETERSON took no part in the consideration of
the above Supplemental Decision and Direction.
Schedule A
Alexander, Kathleen Morales, Carmen Callazo, Carmen
Barron, Carmen Morris, Helen Daniels, Florence
Clancy, Victoria Murray, Allene Fanizza, Josephine
Colon, Teresa Pacheca, Rosa Laboy, Luz
Dembo, Clifton Rehfeldt, Helen Lopez, Diana
Dembo, Russell Rivera, Illuminada Ramos, Vincentia
Driscoll, Agnes Rodriguez, Inez Rivera, Anna
Guidice, Caroline Roman, Rosalie Santiago, Enriquita
Horton, Etta (quit 4/ Sandy, Caroline Savino, Anna.
13/51) Solgado, Carmen Tellado, Josefa
Jackson, Sophie Thurston, Lena Torres, Nina
LaBoy, Miquel White, Carrie Walker, Rose
Macaya, Rosa Brunette, Carmen Wells, Virginia
Miranda, Giullermina Brunette, Georgina Young, Carrie
Schedule B
Virginia Austin Angela Felix Augustine Rivera
Edgar Bonilla Ethel Fisher Mario Rivera
Santiago Bonilla Janie Harris Esmiralda Rodriquez
Elma Brandon John Kerr Vera Serdeczny
Virginia Brewington Loner Lang Thelma Swann
Annette Caputo Aurea Maldonada Dora Torres
Mary Castello Eddie Nater Emily Traina
Olga Corcoron Aracelis Negron Ross Winfield
Basilio Cubi Gerhardt Follack