F. N. Joslin Co.

National Labor Relations Board - Board Decisions

Sep 28, 1948

79 N.L.R.B. 1048 (N.L.R.B. 1948)

In the Matter of F. N. JosLIN CO., EMPLOYER and RETAIL, WHOLE-
SALE & DEPARTMENT STORE UNION, NEw ENGLAND JOINT BOARD,
CIO, PETITIONER
Case No. 1-RC-026.-Decided September 08, 1948
DECISION
ORDER
AND
DIRECTION OF ELECTION
Pursuant to a Stipulation for Certification upon Consent Election
executed on April 5, 1948, by F. N. Joslin Co., Malden, Massachusetts,
herein called the Employer, and Retail, Wholesale & Department
Store Union, New England Joint Board, CIO, herein called the Peti-
tioner, an election by secret ballot was conducted on April 10, 1948,
among the employees in the unit set forth in the Stipulation,) under
the direction and supervision of the Regional Director for the First
Region. Upon completion of the election, the parties were furnished
with a Tally of Ballots, in accordance with the Rules and Regula-
tions of the Board.
The Tally shows that of approximately 120 eligible voters, 111
cast ballots, of which 50 were for and 50 were against the Petitioner,
and 11 were challenged.
On April 20, 1948, the Petitioner protested the conduct of the elec-
tion, and, on April 29 and May 4, 1948, filed detailed Objections to
the Conduct of the Election. After an investigation, the Regional Di-
rector issued his Consolidated Report on Objections and Challenges.
Thereafter, both the Employer and the Petitioner filed Exceptions
to the Consolidated Report.
1 This stipulated unit consists of all the employees of the Employer engaged in selling
and non -selling departments , including office and clerical help, but excluding all executives,
leased department employees , demonstrators , including cosmetic help , part-time employees
who work less than 20 hours a week , watchmen , guards, professional employees, and
supervisors as defined in the Act.
79 N. L. R. B., No. 134.
1048
F. N. JOSLIN CO. 1049
. The Petitioner objected to the conduct of the election and moved
that it be set aside on the ground, among others,2 that a voter who
had been properly challenged by the Petitioner's observer neverthe-
less deposited his ballot in the ballot box without a challenge envelope
to identify it. Investigation by the Regional Director revealed that
such a challenged ballot had been placed in the ballot box. It further
revealed that the Board agent, in an attempt to rectify the error,
took the ballot box behind the curtain which was used to screen the
voters as they voted; called for the Employer's and the Petitioner's
observer to follow him, although only the Employer's observer did
so; slipped his fingers through the slit in the ballot box and extracted
therefrom a ballot, which he described as the top ballot; without open-
ing the folded ballot, inserted it in a challenge envelope, which he
marked with the name of the challenged voter; and placed the said
ballot among the other challenged ballots. The Petitioner's objec-
tions do not state the name of the challenged person, but the investi-
gation of the Regional Director disclosed that the Petitioner's ob-
server claims that the ballot was that of John Tangusso; the Em-
ployer's observer claims that the ballot was that of James Gibson;
the Board agent claims that the ballot was that of Bernard Libon.
When interviewed, Libon was the only one of the challenged persons
Who described circumstances like those outlined above as having oc-
curred at the time his ballot was cast.
After his investigation, the Regional Director recommended that
the challenge to the ballot of one of the three persons named above
be sustained, and that his ballot not be opened, on the ground that
he is an executive of the Employer. Without passing upon the cor-
rectness of the Regional Director's recommendation, it is apparent
that we cannot recreate the situation as it existed before the ballot
was extracted from the box, as we cannot now determine with reason-
able accuracy whose ballot was extracted. Therefore, if one of the
challenge envelopes remains unopened, the possibility exists that an
invalid ballot remained in the ballot box and has been counted, and
that a valid ballot was extracted and placed in the challenge envelope.
' The Petitioner also objected to : (1) Counting as a vote against it an alleged ballot
which consisted of a sheet of paper similar in size and color to the official ballots , but which
unlike the official ballots contained no printed matter , the only marks thereon being the
pencilled word "no" followed by a pencilled "X," and ( 2) permitting the Employer's
observer , according to the Petitioner , to vote in the open and to deposit her ballot in the
ballot box during the time when the Petitioner 's observer was not present , but was voting in
the voting booth, and thus was unable to challenge the ballot of the Employer's observer.
In view of our decision with regard to the Petitioner 's principal objection , however, we find
it unnecessary to pass upon these and other objections filed by the Petitioner . We have
referred to them here to illustrate the improbability of obtaining a determinative result
from the balloting now under consideration.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This would affect the result of the election by as many as two votes.
Under the circumstances of this case , we find that the desires of the
'employees herein involved with respect to the selection of a bargain-
ing agent can be accurately ascertained only by setting aside the
results of the April 10 election and directing a new election.3
ORDER
IT IS HEREBY ORDERED that the election of April 10, 1948, conducted
among employees of F. N. Joslin Co., Malden, Massachusetts, be, and
it hereby is, set aside.
DIRECTION OF ELECTION
IT IS HEREBY DIRECTED that an election by secret ballot be conducted
as early as possible, but not later than 30 days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the First Region, upon the terms and conditions provided in
the Stipulation for Certification upon Consent Election executed by
the Employer and the Petitioner on April 5, 1948, among the em-
ployees in the unit stipulated by the parties to be appropriate who
were employed during the pay-roll period immediately preceding the
date of this Direction.
3 See Matter of Southern Bleachery and Print Work8, Inc., 79 N. L. R. B. 624.