F. J. Stokes Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1957

117 N.L.R.B. 951 (N.L.R.B. 1957)

F. J. STOKES CORPORATION 951
3. At the hearing, the Intervenor, Local 102, Bakery and Confec-
tionery Workers Union, AFL-CIO, moved to dismiss the petition on
the ground that the Petitioner's authorization cards submitted in sup-
port of the petition were tainted by the Employer's unlawful assistance
to the Petitioner. On February 28, 1957, the Board issued a notice
to show cause why the petition should not be dismissed. On the re-
turn date of March 12, 1957, the Petitioner responded to the notice
to show cause and submitted proof of the validity of its showing of
interest. On the basis of the Petitioner's response, we are satisfied that
the Petitioner has an adequate and valid showing of interest to sup-
port its petition and that a question affecting commerce exists con-
cerning the representation of employees of the Employer within Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act. Accordingly,
the Intervenor's motion to dismiss the petition herein is denied.'
4. In agreement with the parties, we find that all telephone operators
at the Employer's establishment in New York, New York, excluding
chief operators, office employees, guards, watchmen, and all supervi-
sors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RoDGFRs took no part in the consideration of the above De-
cision and Direction of Election.
' In view of our decision herein, we hereby dismiss the Petitioner's petition filed in
Case No. 2-RC-8745 on March 8, 1957.
F. J. Stokes Corporation and United Steelworkers of America,
AFL-CIO, Petitioner. Case No. 4RC-3119. March 29, 1957
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election exe-
cuted by the parties on August 21, 1956, an election was conducted on
September 7,1956, under the direction and supervision of the Regional
Director for the Fourth Region, among employees of the Employer in
the unit found appropriate herein. At the close of the election, a tally
of ballots was furnished each of the parties in accordance with the
Board's Rules and Regulations. The tally showed that of approxi-
mately 560 eligible voters, 272 cast ballots for the Petitioner, and 268
cast ballots against the Petitioner. There were 4 void ballots and 4
challenged ballots.
On September 11 and 12, 1956, the Petitioner and the Employer,
respectively, filed timely objections to the conduct of the election. On
117 NLRB No. 131.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 8, 1956, after an investigation in accordance with the Rules
and Regulations of the Board, the Regional Director issued a report
and recommendations on challenges and objections to conduct affecting
results of election, in which he recommended that the challenges to 2
ballots be sustained and the challenges to 2 ballots be overruled, and
that the election be set aside and a new one held. Thereafter, the
Petitioner and the Employer filed exceptions to the Regional Director's
report.
The Board has considered the objections, the Regional Director's re-
port, the exceptions, and the entire record in the case, and finds as
follows :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act : All production and maintenance employees of the Em-
ployer at its machinery and equipment manufacturing plant at Phila-
delphia, Pennsylvania, including shipping, receiving and stockroom
employees, research, development, and experimental mechanics, but
excluding expediters, timekeepers, office clerical employees, engineer-
ing department employees, sales department employees, professional
employees, guards, and supervisors as defined in the Act.
5. The Regional Director's report
A. The challenged ballots
The Petitioner challenged 4 leadmen as alleged supervisors. The
Regional Director found that Maurice Brodie and Anthony Zemartis,
Sr., were supervisors and recommended that the challenges to their
ballots be sustained. As there are no exceptions to this recommenda-
tion, we adopt it. The Regional Director also found that Anthony
Geonnotti and Raymond Smith were not supervisors and recommended
that the challenges to their ballots be overruled and their votes counted.
The Petitioner excepts to this recommendation.
Anthony Geonnotti is 1 of 2 first-shift leadmen in the finishing
and casting cleaning group of the indirect operations section. He
leads six paint finishers, does manual work, checks supplies, and in-
structs new men in the location and operation of equipment. He does
not assign work except under the direction of the group foreman and
F. J. STOKES CORPORATION 953
the section foreman. He is hourly paid with a 10-cent wage differen-
tial but does not attend supervisory meetings.
Raymond Smith is a second shift leadman of seven employees in the
sheet metal group of the welding section. He does manual work along
with the other men. Because he is on the second shift, other super-
vision includes only the second shift group foreman. However, the
first shift group foreman stays on the second shift for an hour each day.
During this hour, this first-shift group foreman makes personnel
changes, lines up work, assigns work, and suggests to Smith which
man should be given each new job when the old job is completed;
also this group foreman reviews with Smith and instructs him about'
procedures as to past work which may not have passed inspection.
Emergency personnel matters on the second shift are handled by the
second-shift group foreman.
In view of the foregoing and as there is no evidence that these two
leadmen have any responsibility for the production of the men, it does
not appear that they responsibly direct the employees with whom they
work. Further, there is no evidence that they hire, fire, or make ef-
fective recommendations as to the status of employees. In these cir-
cumstances, as it does not appear that either Geonnotti or Smith pos-
sesses or exercises the statutory authority of supervisors, we find that
they are not supervisors. Accordingly, we hereby adopt the Regional
Director's recommendation that the challenges to their ballots be over-
ruled and shall direct that their ballots be opened and counted.
B. The objections
(1) The uncast ballot
In its objections, the Petitioner urged that an uncast ballot marked
in its favor should be counted in the official tally.' The Regional
Director's report reveals that in the evening, following the ballot
count and distribution of the tallies, a maintenance employee, in dis-
mantling the polling place, found an unfolded, marked ballot. It was
found in a voting booth and not in the ballot box, which was placed at
the end of the row of voting booths, near the exit and within clear
sight of everybody in the polling place. The ballot was located be-
tween a square of composition board and a packing case, both of which
had been tacked together and set up in each voting booth to serve as a
table on which to mark ballots. It was marked in favor of the Pe-
titioner, to whom it was delivered. Several days after the election,
the Petitioner forwarded the ballot to the Regional Director, request-
ing that it be counted and included in the official tally. A check of
'Subsequently, on November 27, 1955, the Petitioner filed with the Board a motion
requesting withdrawal of such objection. The motion is denied because the question of
the alleged irregularity has been raised.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the voting list then revealed that 549 employees receiv.d ballots where-
as only 548 ballots were in the ballot box when it was opened for
counting.
The Regional Director recommended that the election be set aside,
relying on the circumstances surrounding the uncast ballot and the
two void ballots to be discussed below. However, as the ballot was
never placed in the ballot box and so was not cast, it is analogous to a
ballot that is void because it is destroyed or defaced and should not
be counted .2 Further, we do not believe that the circumstances herein
warrant setting aside the election and, accordingly, we shall not adopt
this recommendation of the Regional Director 3
(2) The 2 void ballots
The Employer in its objections and exceptions contends that two
ballots marked against the Petitioner but ruled void by the Board
agent are in fact valid and should be counted as "no" votes. In view
of our above rulings as to the challenged ballots and the uncast ballot,
these two void ballots may be sufficient to affect the results of the
election.
The two ballots-in question were marked respectively (1) with an
"X" in the small "No" square and "Hell" alongside to the right, and
(2) with an "X" in the small "No" square and "Hell No" alongside
to the right. The words "Hell" and "Hell No" were printed. The
Board agent ruled that the ballots were void. The Employer's ob-
server did not dissent from these rulings and signed the tally and
certification on conduct of election without question. Thereafter, the
Employer filed timely objections to these rulings.
The Regional Director, relying on (1) the theory that the Em-
ployer's objections constituted untimely postelection challenges, and
(2) on the fact that the Employer's observer signed the certification on
conduct of election without question, recommended that the Board
agent's rulings as to the invalidity of the ballots be sustained. The
Employer excepted to this recommendation. We find merit in the
Employer's position. In accord with established precedent, the ques-
tion of the validity of the ballots does not constitute postelection
challenges, and may properly be raised by timely objections after the
count.' Further, as the Board has held, the signing of the certifica-
tion on conduct of election by an observer does not constitute a waiver
2 Dornback Furnace & Foundry Company, 115 NLRB 350; Bon Tool & The Company,
115 NLRB 103
3 See The Falmouth Company, 115 NLRB 1533, 1537-1538; Farrell-Cheek Steel Com-
pany, 115 NLRB 926, 927-928
4 National Truck Rental Company, Inc, 110 NLRB 838, 839 Although Member
Rodgers would not consider the validity of a ballot on the ground it was a post-
election challenge , he considers himself bound in the instant case by the precedent in
the National Truck case . See also Kresge-Newark, Inc, 112 NLRB 869 , 870-871; Rock.
well Valves, Inc, 111 NLRB 242, 243.
GENERAL MOTORS CORPORATION 955
of the right to file objections.' Accordingly, we shall entertain the
Employer's objection to the rulings on the validity of the two ballots,
and shall consider the objection on the merits. Because the markings
on the two ballots clearly reveal the intent of the voters and are not.
inherently such as to disclose the identity of the voters, we find that
they are valid ballots.e In these circumstances, we direct that they be
counted as valid votes against the Petitioner and be included in the'
official tally.
[The Board directed that the Regional Director for the Fourth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots of Anthony Geonnotti and Raymond Smith,
count the 2 ballots marked "Hell" and "Hell No," and shall not count
the uncast ballot. He also shall serve upon the parties a supplemental
tally of ballots.]
5 General Plywood Corporation, 83 NLRB 197, 198; Wilson & Company, Inc., 1001
NLRB 1512, 1514, footnote 3.
6 Pioneer Electronics Corporation, 112 NLRB 1010 While Chairman Leedom joins hia
colleagues in this decision, he believes a better rule than that in the precedent of Pioneer
Electronics Corporation , supra, would be to declare void all ballots that bear marks out-
side the square deliberately placed there by the voter and that would serve to identify
his ballot.
General Motors Corporation , Fisher Body Division , Mansfield,
Ohio, Plant I and International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America (UAW-
AFL-CIO),2 Petitioner
General Motors Corporation , Fisher Body Division , Mansfield,
Ohio, Plant and International Association of Tool Craftsmen,
affiliated with National Independent Union Council , Petitioner
General Motors Corporation , Fisher Body Division , Mansfield,
Ohio, Plant and Pattern Maker 's League of North America,
Cleveland Association , AFL-CIO, Petitioner. Cases Nos. 8-RC-
2879, 8-RC-2882, and 8-RC-2883. April 2, 1957
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before W. R. Griesbach, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
1 The name of the Employer in all three proceedings appears as amended at the hearing.
2 The name of the Petitioner appears as amended at the hearing.
117 NLRB No. 139.