Fisher-New Center Co.

National Labor Relations Board - Board Decisions

Aug 3, 1970

184 N.L.R.B. 809 (N.L.R.B. 1970)

FISHER-NEW CENTER COMPANY 809
Fisher -New Center Company and International
Union , United Plant Guard Workers of America
(UPGWA) and its Amalgamated Local Union No.
114, United Plant Guard Workers of America,
Petitioner . Case 7-RC-9424
August 3, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election approved on May 9, 1969, an
election by secret ballot was conducted on May 22,
1969, under the direction and supervision of the
Regional Director for Region 7 among the em-
ployees in the stipulated unit. At the conclusion of
the election the parties were furnished with a tally
of ballots which showed that of approximately 17
eligible voters, 16 cast ballots, of which 8 were for,
and 8 against, the Petitioner. Thereafter, the Peti-
tioner filed timely objections to conduct affecting
the results of the election alleging , in effect, that
the ballots of two supervisors had been counted
notwithstanding timely challenges thereto.
The Regional Director conducted an investiga-
tion of the objections and concluded that they
raised material and substantial issues of fact which
could best be resolved by a hearing. On June 26,
29, and 30 a hearing was held before Hearing Of-
ficer Albert G. Fisher.
On September 26, 1969, the Hearing Officer is-
sued his Report on Objections, attached hereto, in
which he recommended that the objections be
dismissed in their entirety. Without passing upon
the supervisory status of Pelto and Claspell, the
Hearing Officer recommended that the objections
be dismissed in their entirety because they were in
the nature of postelection challenges , which the
National Labor Relations Board does not permit.
He further found that the Board agent had not
acted improperly in informing Petitioner's
representative of the signing of the Norris-Ther-
madorl eligibility list at the time the representative
renewed Petitioner's observer's challenges to the
two ballots.
Thereafter, the Petitioner filed timely exceptions
to the Hearing Officer's report and a supporting
brief and the Employer filed a brief in answer to the
exceptions and in support of the Hearing Officer's
report. The Board, on February 13, 1970, issued its
Order Remanding Proceeding to Hearing Officer.2
The Board therein indicated it had duly con-
sidered the Hearing Officer's Report on Objections,
the Employer's brief in support thereof, and the
Petitioner's exceptions thereto and supporting brief
and was of the opinion that issues were raised with
respect to the supervisory status of R. Pelto and M.
Claspell, a matter not resolved by the Hearing Of-
ficer although litigated by the parties, which in-
dicated that this situation might, in the peculiar cir-
cumstances herein, fall within the exception to the
Norris-Thermador rule as to the final and binding
nature of a signed agreement on eligibility. Ac-
cordingly, the proceeding was remanded to the
Hearing Officer for a determination of the super-
visory status of Pelto and Claspell. The Board, in its
Order, directed that the Hearing Officer prepare a
supplemental report containing resolutions of the
credibility of witnesses, findings of fact, and recom-
mendations to the Board as to disposition of the is-
sues.
On April 3, 1970, the Hearing Officer issued his
attached Supplemental Report on Objections in
which he found that Pelto and Claspell were super-
visors within the meaning of the Act but recom-
mended, nevertheless, that the objections be
dismissed on the ground that they were postelection
challenges and that the Board agent conducting the
election had engaged in no impropriety in soliciting
withdrawal of the challenges interposed by Peti-
tioner's observer at the time of the balloting.
Thereafter, Petitioner filed timely exceptions to the
Hearing Officer's Supplemental Report on Objec-
tions and the Employer filed a brief in partial sup-
port of said report.
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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies 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 con-
cerning the representation of employees within the
meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
' Norris-ThermadorCorporation, 119 NLRB 1301 Y Not printed in NLRB volumes
184 NLRB No. 92
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All watchmen employed by the Fisher New
Center Co., at its locations in the present
Fisher Building and in the present New Center
Building ; excluding all other employees and all
supervisors as defined in the Act.
5. The Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds that
no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
stipulation of the parties, the objections, the Hear-
ing Officer's Report on Objections, the Supplemen-
tal Report on Objections, and the entire record in
the case, including the exceptions and briefs of the
parties, and hereby adopts the findings and recom-
mendations of the Hearing Officer only to the ex-
tent consistent herewith.
We agree with the Hearing Officer's finding that
Pelto and Claspell are supervisors within the mean-
ing of Section 2(1 1) of the Act. However, we do
not agree that the objections to the election should
be dismissed nevertheless.
It is not disputed that on May 9, 1969, prior to
this election, the parties attended a preelection
conference at which they both signed a Norris-
Thermador eligibility list, resolving issues of eligi-
bility. At the election on May 22, 1969, the Peti-
tioner's observer challenged two voters, Pelto and
Claspell, whose names appeared on the eligibility
list, on the ground that they were supervisors. Prior
to the ballot count at the conclusion of the election,
Petitioner Vice President Waldrop reiterated to the
Board agent Petitioner's claim that the challenged
ballots were cast by supervisors. The Employer's
representative thereupon informed Waldrop that
the voting eligibility list was approved by both the
Petitioner and the Employer, and the Board agent
conducting the election confirmed this information.
Waldrop, after examining the eligibility list, stated
that he was unaware of the agreement on the eligi-
bility list reached at the meeting of May 9, and that,
under the circumstances, he would withdraw the
challenges. The Board agent conducting the elec-
tion then solicited and secured signatures of the
parties' representatives on the back of the chal-
lenge envelopes, to a stipulation that, "This em-
ployee is eligible to vote because he is a non-super-
visory employee within the unit described in the
Notice. This stipulation is final and binding." The
ballots, including those of Pelto and Claspell, were
then counted and the tally was taken and certified.
The Hearing Officer concluded that the stipula-
tion of the parties was conclusive and these were in
the nature of postelection challenges. He also
stated that the Board agent had engaged in no im-
proper conduct by informing the Union's agent of
the signing of the Norris-Thermador list. We dis-
agree as to the effect of the agreement and there-
fore shall set aside the election, even though we do
not imply any improper conduct on the part of the
Board agent.
In Norris-Thermador, the Board established the
rule that the parties to an election agreement would
be bound by an eligibility list attached and incor-
porated into a written and signed agreement if it
was specifically stated that all eligibility issues
resolved would be final, unless the inclusion or ex-
clusion of certain employees contravened the Act
or established Board policy. There is no question
but that it would contravene the policies of the Act
and the Board knowingly to permit the ballots of
supervisors to determine the results of the election.
For this reason it would contravene such policy if
by agreement of the parties supervisors were ir-
revocably rendered eligible to vote.
In the instant case, as the ballots of Pelto and
Claspell were challenged on the ground of their su-
pervisory status and statutory exclusion, the Union
was not, under Norris-Thermador, precluded from
raising the issue as to their eligibility.3 Further, the
challenges were withdrawn in apparent reliance
upon erroneous information and advice, which may
have been given by the Board agent among others.
Notwithstanding the absence of wrongdoing on the
part of the Board agent, where a party to its detri-
ment relies on inadvertently erroneous action or
advice given by an agent of the Board, reversal may
be required.4 Since we have found that the situation
here is within the exception to the Norris-Ther-
mador rule, contrary to the honest interpretation of
the Board agent at the election and of the Hearing
Officer, we find that the inclusion of the ballots of
the two supervisors creates a doubt as to the validi-
ty of the outcome of the election.' Under the cir-
cumstances we shall set aside the election of May
22, 1969, and direct a second election.
ORDER
It is hereby ordered that the election previously
conducted herein on May 22, 1969, be, and it
hereby is, set aside.
Lake Huron Broadcasting Corporation , 130 NLRB 908
See, e g , Natvar Corporation , 109 NLRB 1278, 1279-80, Pioneer Divi.
sion, The Flintkote Company, 109 NLRB 1273, 1274-75 Cf Lake Huron
Broadcasting Corp , supra
' See Lake Huron Broadcasting Corp , supra
FISHER-NEW CENTER COMPANY 811
[Direction of Second Elections omitted from
publication. ]
'In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
dern,ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly , it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region 7 within 7 days after
the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
HEARING OFFICER'S REPORT ON
OBJECTIONS
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional
Director for Region 7 of the National Labor Rela-
tions Board, herein called the Regional Director
and the Board, respectively, on May 9, 1969, an
election was conducted by Region 9 of the Board
on May 22, 1969, among the employees of the Em-
ployer in an appropriate bargaining unit' to deter-
mine whether or not they desired to be represented
for the purposes of collective bargaining by the
Petitioner. The tally of ballots served on the parties
at the conclusion of the election showed that of ap-
proximately 17 eligible voters, 16 cast ballots of
which 8 were for the Petitioner, and 8 were against
the Petitioner and none were challenged.
Objections to the Conduct Affecting Results of
the Election were timely filed by the Petitioner on
May 29, 1969, and copies thereof were simultane-
ously served on the other parties.
The Regional Director conducted an investiga-
tion of the objections and concluded that material
and substantial issues of fact, including credibility
resolutions, have been raised by these objections
which could best be resolved by a hearing, and he
so ordered a hearing and issued a Notice of Hearing
herein on June 9, 1969. The Regional Director
further ordered that the Hearing Officer designated
to conduct the hearing shall prepare and cause to
be served on the parties a report containing resolu-
tions of credibility of witnesses, findings of fact,
conclusions of law, and recommendations to the
Board concerning the disposition of the issues
herein involved.
Pursuant to the order of the Regional Director
and the Notice of Hearing, a hearing was held on
June 26 and July 29 and 30, 1969, at Detroit,
Michigan, before this Hearing Officer. All parties
' The unit is as follows "All watchmen employed by the Fisher-New
Center Co , at its locations in the present Fisher Building and in present
New Center Building , excluding all other employees and all supervisors as
defined in the Act "
were present or represented by counsel, and were
afforded full opportunity to be heard, to examine
and to cross-examine witnesses, and to introduce
evidence bearing on the issues . The decision herein
is based upon my consideration of the record as a
whole and my observation of the demeanor of the
witnesses.
The Objections
1. During the polling period of the election in
the above -captioned case, petitioner's
designated observer, Howard A. Tunell chal-
lenged the ballots of two voters , R. Pelto and
M. Claspell. Observer Tunell told the Board
Agent conducting the election that these two
voters were being challenged by the petitioner
for the reason that both were supervisors
within the meaning of the Act; Pelto being the
chief of the employees in the unit described in
the Petition in this case and Claspell being his
assistant.
After the voting had taken place and the
time to vote had expired, and immediately
prior to the counting of the ballots, petitioner,
by its Vice President, Edson Waldrop, again in-
fotmed the Board Agent that the petitioner
was challenging the two ballots in question
because the persons who cast the ballots were
both supervisors. Mr. Waldrop informed the
Board Agent that, as these two persons were
supervisors, they were specifically excluded
from the unit by virtue of the unit description
in the Petition itself.
However, despite the Board Agent's
knowledge that these two challenges were
based on the supervisory status of the two
voters in question, the Board Agent, neverthe-
less, allowed the petitioner's withdrawal of
these challenges for the reason that the names
of the two voters whose ballots the petitioner
had challenged appeared on the eligibility list.
The aforedescribed conduct was improper
for two reasons: (1) two persons who are
clearly supervisors within the meaning of the
Act were permitted to vote; (2) the challenges
as they were based on the supervisory status of
the voters in question should have been
resolved. The challenges should not have been
allowed to be withdrawn.
2. R. Pelto and M. Claspell, both of whom are
supervisors within the meaning of the Act were
present in the polling area during the time of
the election. Their presence, as agents of the
Employer, violated the Board's prohibition
against the presence of either party in the elec-
tion area during voting times.
3. Supervisors Pelto and Claspell engaged in
conversation with voters while the latter were
in the polling are (sic) and in line to vote. This
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct on their part violated the Board's
Milchem (170 NLRB 362) rule.2
Prior to the election in this matter, on May 9,
1969, the parties met in a preelection conference
and both parties signed a Norris-Thermador3 eligi-
bility list (Board Exh. 2). On the day of the elec-
tion, May 22, 1969, the Petitioner's observer
(Howard A. Tunell) challenged two voters, R. Pelto
and M. Claspell, both of whom were on the eligi-
bility list. The challenges to these men voting were
based on the claim that the two men were super-
visors. After the election, and immediately prior to
the counting of the ballots, Petitioner, by its Vice
President Edson Waldrop, again informed the
Board agent that the Petitioner was challenging the
two ballots in question because the persons who
cast these ballots were supervisors. Then the Em-
ployer's representative, either Mr. Caminker or Mr.
Leonard Preuett , asked Waldrop if Waldrop was
aware of the (May 9) meeting. Mr. Waldrop said
that he was. Then Mr. Caminker (or Preuett) told
Mr. Waldrop that the voting eligibility list was ap-
proved by both the Petitioner and the Employer at
that May 9 meeting. Then the Board agent, con-
ducting this election, confirmed to Mr. Waldrop
that this eligibility list had been approved by both
the Petitioner and the Employer. Waldrop asked to
see this eligibility list. The Board agent got the list
and showed it to Waldrop, pointing out the names
of Pelto and Claspell and said that they were eligi-
ble to vote. The Board agent then asked Waldrop
what Waldrop's position was on these two chal-
lenged ballots. Waldrop stated that he was not
aware of what had occurred at the (May 9) meeting
(i.e., the parties agreeing to the eligibility list). Wal-
drop then said, that under the circumstances, he
would withdraw the challenges. Then, the Board
agent wrote out on the back of the challenged en-
velopes of Pelto and Claspell, the following: "This
employee is eligible to vote because he is a non-su-
pervisory employee within the unit described in the
Notice. This stipulation is final and binding," and
Waldrop and the Employer's representative,
Caminker, signed it (Board Exhs. 3(a) and (b)).
Then the ballots, including those of Pelto and
Claspell, were counted and the tally taken and cer-
tified.
As pointed out above, the Norris-Thermador list
is final and binding if its language so provides, un-
less to consider it thus would be contrary to the Act
or to the Board's policy. See also Lake Huron
Broadcasting Corp., 130 NLRB 908, 909 (1961),
where the employer challenged a voter on the basis
of his being a supervisor, and although a Norris-
Thermador list had been signed, the Board per-
mitted the challenge since it was contrary to the Act
to include supervisors. See also Pyper Construction
Company, 177 NLRB 707 (1969) where the Board
agent challenged a voter who was inadvertently left
off the Norris-Thermador list signed by the parties.
The Board held that it would honor concessions
made in the interest of expeditious handling of
representation cases, even though there may be
some question about including certain employees in
the unit, or excluding them from it, were the matter
litigated. This case followed the Norris-Thermador
case.
Note that in the above cases, the Board was deal-
ing with challenges. In the instant case, the Peti-
tioner, after discussing the matter with both the
Employer's representative and the Board's agent
withdrew the two challenges, and therefore, after
the tally of ballots was made, there was no challenge
to any of the ballots. And this is so reflected in the
Regional Director's Report and Notice of Hearing
issued on June 9, 1969 (Board Exh. 1(a)).
In the instant case, the Petitioner is using objec-
tions to attempt to challenge the ballots of two
voters. This is considered a postelection challenge
and a kind that the Board does not permit. A case
quite similar to the instant one is Fulton Bag and
Products Company, 121 NLRB 268, 269-270
(1958). There, when a voter (Fink) showed up for
the Board's conducted election, one of the em-
ployer's observers stated that she wanted to chal-
lenge a voter on the grounds that he was a foreman
(supervisor). The Board agent and the observers
checked the eligibility list and found that the
voter's name appeared thereon. The Board agent
noted that the employer had prepared the eligibility
list, and it apparently did not consider the voter a
supervisor. The observer made no further com-
ment, nor did the observer reiterate any further
challenge. The Board, in adopting the Regional
Director's above findings, held that under all the
circumstances of the Fink situation, it was reasona-
ble for the Board agent to assume the employer's
observer had withdrawn the challenge and that, in
allowing Fink to vote, the Board agent was not act-
ing over the protest of the employer's observer. The
Board noted in the Fulton Bag case, that where the
eligibility list is prepared by the employer and ap-
proved by the other parties to the election, it may
be presumed that the list is correct. The Board
noted (footnote 5) further, that if an observer for
any party then challenges any person appearing at
the polls, it is not improper for the Board agent to
ascertain the reason for the challenge, and to call
the observer's attention to the fact the name of the
challenged voter appeared on the list. Such conduct
by the Board agent serves to prevent groundless
challenges and unnecessary delay in the certifica-
tion of results and it is essential to the orderly con-
duct of the election. Any observer may for good
During the hearing herein, the Petitioner withdrew Objection 3
' Norris-Thermador Corp , 119 NLRB 1301 ( 1958) Here, the Board held
that , where parties enter into a written and signed agreement which ex-
pressly provides that the issues of eligibility resolved therein shall be bind-
ing and final upon the parties , the Board will consider such an agreement a
final determination of the issues , unless at is in part or in whole, contrary to
the Act or Board policy
FISHER-NEW CENTER COMPANY 813
cause insist on the right to challenge and the Board
agent is obliged to accept the challenge. In the Ful-
ton Bag case, it did not appear that the observer for
the employer continued to claim the right to chal-
lenge after the examination of the list disclosed the
voter's name. The Board noted that under these cir-
cumstances the employer's claim of improper con-
duct on the part of the Board agent to be without
merit. In this Fulton Bag case, the Board having
adopted the Regional Director's finding that no
challenge existed, found that it was not necessary for
the Board to pass on Fink's supervisory or nonsu-
pervisory status. The Board stated that, if no chal-
lenge existed, then the objection to Fink's ballot is
in the nature of a postelection challenge, and one
that will not be considered by the Board. See Sears
Roebuck & Co., 114 NLRB 762 (1955). There, the
Board held that postelection challenges which
were advanced under the guise of objections to an
election were not recognized by the Board, and for
purposes of results of an election, challenged voters
were considered as in unit despite status as super-
visors. See N.L.R.B. v. A. J. Tower Company, 329
U.S. 324.
Therefore, I recommend to the Board that the
Objections to the Conduct Affecting the Results of
the Election be dismissed in their entirety. First,
these are postelection challenges which the Board
does not permit. Second, there was no improper
conduct on the part of the Board agent in bringing
the facts of the signing of the Norris-Thermador
eligibility list to the attention of the Petitioner's
representative at the time that the representatives
renewed the Petitioner's observer's challenges to
two ballots. See footnote 5 in Fulton Bag case
above, for Board's finding and conclusion that such
conduct on the part of Board agent is not improper,
and expedites the handling of representation cases,
serves to prevent groundless challenges, and to
prevent unnecessary delays in the certification of
results. As noted above, the third objection was
withdrawn by Petitioner during the hearing herein.
Therefore, on the basis of the above record as a
whole, I find and conclude that the objections
should be dismissed in their entirety.
RECOMMENDATIONS
Based upon my findings and conclusions above, I
recommend that the Board dismiss the Objections
in their entirety.
Any party may within 10 days from the date of
the issuance of this report file with the Board in
Washington, D.C., eight copies of exceptions to
such report in accordance with Section 102.69 of
the Board's Rules. Immediately upon the filing of
such exceptions, the party filing the same shall
serve a copy thereof on the other parties and shall
file a copy with the Regional Director of Region 7.
184 NLRB No. 92
HEARING OFFICER'S SUPPLEMENTAL
REPORT ON OBJECTIONS
On September 26, 1969, the Hearing Officer is-
sued his Hearing Officer's Report on Objections in
the above matter, recommending that the Peti-
tioner's Objections to the Conduct Affecting the
Results of the Election be dismissed in their en-
tirety for the reasons stated in such report. The
Board, on February 13, 1970, ordered that this
proceeding be remanded to this Hearing Officer for
a determination concerning the supervisory status
of R. Pelto and M. Claspell. The Board therein
further ordered that the Hearing Officer shall
prepare and cause to be served on the parties a sup-
plemental report containing resolutions of the
credibility of witnesses, findings of fact, and recom-
mendations to the Board as to the disposition of
said issues.
Supervisory Status of R. Pelto and M. Claspell
An election was held on May 22, 1969, among
the employees of the Employer in an appropriate
bargaining unit' to determine whether or not these
employees wished to be represented by the Peti-
tioner for the purposes of collective bargaining. At
the time, there were three shifts of 8 hours duration
at the Fisher-New Center Buildings. These two
buildings are across the street from one another,
the Fisher Building being the main building, and the
New Center Building being its annex, with an un-
derground tunnel connecting the two, and the two,
along with their parking lots being the premises of
the Employer. The Employer's watchmen work on
three shifts, the first with four men being from 8
a.m. to 4 p.m., the second with five men being from
4 p.m. to midnight, and the third with four men
being from midnight to 8 a.m. Sometimes, when the
security needs arise, men work overtime. R. Pelto,
whom the Employer calls the "leader" (and the
men call "chief") is in charge of these above
watchmen. M. Claspell, whom the Employer calls
the second man in charge (the men call him the
"assistant chief"), is in the number 2 spot. Pelto
works the first shift and Claspell works the second
shift, ordinarily. Since Employer's Administrative
Manager Leonard Preuett testified that (1) when
Pelto is absent, that M. Claspell takes Pelto's place,
and has pretty much the same duties, and that
further (2) this happened during the long period
from November 1967 through April or May 1968,
and at a number of later times, I am going to ex-
amine the powers and duties of Pelto, and decide
both men's supervisory status on the basis of
whether Pelto was a supervisor during the material
times.
' The unit is as follows "All watchmen employed by the Fisher-New
Center Co , at its locations in the present Fisher Building and in the present
New Center Building, excluding all other employees and all supervisors
as defined in the Act "
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Witness ( guard ) Edward Kwilos testified that
about April or May, 1969, before the election of
May 22, 1969, Leonard Preuett, administrative
manager, and John Weinandy, building superinten-
dent reporting to Preuett, held an employee meet-
ing among the guards and told them to respect their
supervisors, listen to their orders, and to obey their
orders. Although Kwilos testified that he con-
sidered Pelto and Claspell chief and assistant chief,
and both actually as bosses, Kwilos testified that in
this meeting the "supervisors" were not identified
by management. However, I find and conclude that
Preuett and Weinandy were referring to Pelto and
Claspell as supervisors since these two would be the
two men that would be giving the watchmen their
orders on a regular basis, and the two with whom
the watchmen would have contact; further, Kwilos
testified he knew who these "supervisors" were; he
considered Pelto and Claspell the "bosses" over the
watchmen, as did watchmen Tunell and Smith.
The assignments of the guards are made through
a weekly work schedule prepared by Pelto and ap-
proved by Weinandy. These are posted on the
guard's bulletin board. As an employer policy,
Pelto has the right to make minor schedule changes
(including authorizations of minor overtime), but
that Weinandy makes the major changes. However,
employees Tunell, Smith, and Kwilos testified that
they asked for or heard others (all guards) ask for
time off, and that Pelto decided the matter on the
spot without consulting others. This decision in-
volved as much as 8 hours.
According to Weinandy, Pelto discussed appli-
cants who sought jobs with Weinandy, after Pelto
or Weinandy interviewed them, and gave his, Pel-
to's opinion concerning them. On a number of oc-
casions, Pelto was the interviewer. And Administra-
tive Manager Preuett testified that Pelto made
recommendations concerning applicants, but did
not have the authority to hire. Preuett
acknowledged that some weight was attached to
Pelto's recommendations, but that the final deci-
sion to hire was retained by Pelto's supervisors
(Weinandy and Preuett).
According to Preuett, Pelto could make recom-
mendations concerning guard employees, with
reference to wage increases and promotions, and
these recommendations would be given some
weight. Again, Pelto could recommend changes in
the work schedules of the guards, but Weinandy ap-
proved them, according to Preuett.
Pelto and Claspell use the same desk in an office
off the underground concourse between the two
buildings, and they prepare accident reports, a daily
journal concerning matters that need special atten-
tion (e . g. the removal of furniture at night from an
office , the need to patrol certain areas just after
school lets out, the loitering of undesirables in the
building, etc.), and the daily time records of the
guards which are initially by Pelto and Claspell
( Claspell initials when Pelto is absent from work).
Where accident reports are prepared by watchmen,
they are initialled by Pelto, and after being
reviewed by Pelto's superiors, they are returned to
Pelto to be kept in his files; if the accident report is
incomplete , Pelto will make an additional investiga-
tion.
According to John Weinandy, Weinandy has in-
structed Pelto to keep his eye on various employees
when there are problems with the watchmen, and
Pelto discusses the men and their behavior with
Weinandy from time to time; Pelto has the right to
correct the watchmen if he sees them not perform-
ing their duties, or performing them in a sloppy
manner , and the watchmen are expected to obey
him, and do so.
According to Superintendent Weinandy, it would
be normal for the employees to come to Pelto with
their grievances, and for Pelto to adjust minor
grievances.
With regard to the question of whether or not
Pelto can hire, the testimony of employee Tunell
suggested that Pelto hired Tunell. However, Su-
perintendent Weinandy, without contradiction,
testified that he had been involved (from the
beginning) in the hiring of Tunell, having made the
initial contact with the Fisher Building tenant that
had been Tunell's employer, and had handled it at
the various stages of Tunell's application for em-
ployment Likewise, with the case of the hiring of
watchman Cotten: although Pelto interviewed Cot-
ten and took his application for employment, Ad-
ministrative Manager Leonard Preuett testified
without contradiction that Weinandy had had an in-
itial interview with Cotten concerning this
watchmen's "moonlighting" employment at Fisher-
New Center in addition to Cotten's United States
Government employment, and had made sure that
the United States Government had no objection to
Cotten's second Fisher watchmen employment be-
fore Cotten was approved for employment by
Preuett and Weinandy; of course, Tunell would
know nothing about this confidential investigation
and checking, and approval for employment. And
Preuett denied that Pelto had any authority to hire
employees.
Pelto, and Claspell both punch timecards, as do
the other watchmen; both are hourly rated and
receive the same fringe benefits that the other
watchmen receive; they both wear uniforms as the
other watchmen; Claspell receives 22 cents above
the other watchman, and Pelto receives 25 cents
above Claspell.
From the above, I find and conclude that Pelto
and Claspell are supervisors, and were so at all
times material herein , within the meaning of Sec-
tion 2(1 1) of the Labor Management -Relations
Act, as amended, herein called the Act. I find and
conclude this from the above facts that (1) both
Pelto and Claspell had the authority to responsibly
direct the work force of guards on three shifts-1 1
men in all (Claspell taking over in Pelto's absence)
using their own judgment; (2) the guards were
specifically instructed by top management to obey
FISHER-NEW CENTER COMPANY 815
these two men (Pelto and Claspell) at a manage-
ment meeting just before the Board-conducted
election of May 22, 1969; (3) the watchmen con-
sidered Pelto and Claspell their "bosses"; (4) Pelto
(and therefore, Claspell) had the authority to grant
time off on the spot using his own judgment and did
so (he sometimes refused it, using this judgment);
(5) Pelto (and, therefore, Claspell, in Pelto's
absence) could effectively recommend the hiring,
and wage increases and promotions of watchmen;
(6) Pelto and Claspell had the right to correct
watchmen for poor behavior and the men were ex-
pected to obey Pelto and Claspell; and (7) the men
came to Pelto (and Claspell, in Pelto's absence)
with their grievances, and these two men handled
minor grievances of watchmen.
Therefore, based upon my consideration of the
record as a whole, and of my observance of the
demeanor of the witnesses, I find and conclude that
Pelto and Claspell were supervisors within the
meaning of Section 2(1 1) of the Act at the time of
the Board-conducted election on May 22, 1969.
However, I recommend, again, that the Board
dismiss the Petitioner's objections in their entirety
in the instant matter for the reason that the Peti-
tioner is using objections to attempt to challenge
the ballots of these two voters, Pelto and Claspell.
These are considered postelection challenges and a
kind the Board does not permit. Second, I, again,
find and conclude that there was no improper con-
duct on the part of the Board agent in this matter in
bringing the facts of the signing of the Norris-Ther-
mador eligibility list to the attention of the Peti-
tioner's representative at the time of the Board-
conducted election when the Petitioner's represent-
ative renewed the Petitioner's observer's chal-
lenges to these two ballots. My reasons for my
recommendation and my findings and conclusions
are all stated in detail in my original Hearing Of-
ficer's report dated September 26, 1969.2 There-
fore, on the basis of the above record as a whole I
find and conclude that the objections should be
dismissed in their entirety, and I recommend that
the Board do so.
Any party may, within 10 days from the date of
issuance of this Supplemental Report, file with the
Board in Washington, D.C., eight copies of excep-
tions to such report in accordance with Section
102.69 of the Board's Rules. Immediately upon the
filing of such exceptions, the party filing the same
shall serve a copy thereof on the other parties and
shall file a copy with the Regional Director for Re-
gion 7.
2 As noted in the original Hearing Officer 's Report on Objections, Peti-
tioner's Objection 3 was withdrawn by the Petitioner during the hearing
herein Further, neither party offered any evidence at the hearing concern-
ing Petitioner 's Objection 2, except that Pelto and Claspell came in to vote
and did vote ( originally under challenge ) and then left I find and conclude
that this is not the type of conduct which the Board finds objectionable