F. Stauss & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1972

195 N.L.R.B. 583 (N.L.R.B. 1972)

F. STRAUSS & SON, INC. 583
F. Strauss & Son, Inc . and Retail Clerks Union Local
No. 210 chartered by Retail Clerks International
Association, AFL-CIO, Petitioner. Case 15-RC-
4703
February 25, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election , a secret ballot was conducted among
the employees in the stipulated unit described below.
The tally of ballots furnished the parties showed that
of approximately 156 eligible voters, 153 ballots were
cast, of which 75 were for , and 73 against , the Peti-
tioner ; 4 were challenged . One ballot was declared void.
The Petitioner filed timely objections.'
In accordance with the National Labor Relations
Board Rules and Regulations , the Regional Director
conducted an investigation and, on December 16, 1971,
issued and served on the parties his Report on Chal-
lenges and Objections , recommending that the chal-
lenge to the ballot of Stephen W. Laws be overruled,
and that his ballot and the voided ballot be opened and
counted ; and that Objections 4 and 6 through 10 be
overruled . The Regional Director found that Objec-
tions 1 , 2, 3, and 5 presented issues which can best be
resolved by a hearing , and, since the conduct involved
in these objections is encompassed by a complaint
which has issued in Case 15 -CA-4274, the two cases
be consolidated for hearing before a Trial Examiner.
The Regional Director further recommended that, in
the event the revised tally of ballots reflects that the
three remaining challenged ballots , cast by Victor
Ogles, Louis Blake, and Charles Osborn , still affect the
results of the election , the issues raised by these chal-
lenges be included in the hearing on the consolidated
cases . In the event Case 15 -CA-4274 is settled, the
Regional Director recommended that the hearing in
the instant case be conducted by a Hearing Officer. The
Employer filed exceptions to the Regional Director's
recommendations regarding the challenged ballots cast
by Osborn, Blake , and Ogles, and the voided ballot, and
a brief in support of its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding , the Board
finds:
' The Employer 's objections, filed October 22, 1971, were withdrawn
November 23, 1971
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. The parties stipulated and we find that the follow-
ing employees constitute an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All fulltime and regular parttime employees at
Employer's Monroe, Louisiana, operations, in-
cluding warehouse employees, cash and carry em-
ployees, including cashier, stockers, loaders, un-
loaders, order pullers, truck spotters, forklift
operators, packroom employees, garage em-
ployees, including mechanics and utility service
employees, warehouse equipment maintenance
and sanitation employees, truckdrivers and
produce truck helpers, and warehouse clerical em-
ployees; but excluding all other employees, includ-
ing office clerical employees, professional em-
ployees, salesmen, data processing employees,
advertising and printing department employees,
cash receivable clerk, watchmen and/or guards,
inbound and outbound checkers and all other
supervisors as defined in the Act.
5. The Board has considered the Regional Director's
report and the Employer's exceptions and brief, and
hereby adopts the Regional Director's findings, conclu-
sions, and recommendations as modified herein.2
ORDER
It is hereby ordered that the ballot cast by Stephen
W. Laws and the voided ballot be opened and counted.
If the Petitioner receives a majority of all the votes cast,
it shall be certified. In the event the challenged ballots
cast by Victor Ogles, Louis Blake, and Charles Osborn
affect the results of the election, the issues raised by
those challenges, and by Objections 1, 2, 3, and 5, will
be consolidated with Case 15-CA-4274 for hearing
' In the absence of exceptions thereto, the Regional Director's recom-
mendations that the challenge to the ballot of Stephen W Laws and Objec-
tions 4 and 6 through 10 be overruled, and his recommendations with regard
to Objections 1, 2, 3, and 5, are adopted pro forma. Though we agree with
the Regional Director that the voided ballot should be counted, we do not
rely on his statement that identification of the voter who cast his ballot was
sheer speculation The circumstances related by the Regional Director indi-
cate that the markings on the ballot were inadvertently made In the absence
of evidence indicating that the ballot was deliberately marked for the pur-
pose of identification, we will not disenfranchise a voter. Luntz Iron & Steel
Co., 97 NLRB 909; Bridgeton Transit, 124 NLRB 1047.
195 NLRB No. 112
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before a Trial Examiner- to be designated by the Chief Hearing Officer to be designated by the Regional Direc-
Trial Examiner. If Case 15 -CA.-4274 is settled, then tor.
the hearing in the instant case will be conducted by a