Gary Enterprises, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1949

86 N.L.R.B. 431 (N.L.R.B. 1949)

In the Matter of GARY ENTERPRISES,-INC. and PLASTIC, Bu'ITO- AND
NOVELTY WORKERS UNION ( PLASTIC, MOLDERS AND NOVELTY WORK-
ERS UNION, LOCAL 132, ILGWU, AFL
Case No. 2-RC-723
SUPPLEMENTAL DECISION
ORDER
AND
SECOND DIRECTION OF ELECTION
October 10, 19.1p
On May 27, 1949, the Board issued an order reopening the record
and remanding this proceeding to the Regional Director for hearing
on certain issues raised by objections filed by the Employer, to the
elections conducted herein on March 31, 1949. On July 26, 1949, the
hearing was held. On September 1, 1949, the hearing officer issued and
duly served upon the parties his Report on Objections, a copy of
which is attached hereto, recommending that the election be set aside
and a new election be directed, because the conditions under which the
election was held were not such as to insure a free expression of the
desires of the employees.
Upon consideration of the entire record in this case, the Board
adopts the findings of the hearing officer; they are hereby approved
and made a part of the record in this proceeding. Accordingly, we
shall set aside the election conducted herein and shall direct a new
election among the employees in the appropriate unit,' who were
employed during the pay-roll period immediately preceding the
issuance of this Second Direction of Election.
ORDER
IT IS HEREBY ORDERED that the election of March 31, 1949, conducted
among the employees of Gary Enterprises, Inc., Brooklyn,°New York,
be and hereby is, set aside.
' Matter of General Shoe Corporation , 77 N. L. R. B. 124.
2 Matter of Gary Enterprises, Inc., 81 N. L. R. B. 1349.
86 N. L. It. B., No. 58.
431
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SECOND DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Second Direction, under the direction
and supervision of the Regional Director for the Region in which this
case was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in the original Decision and Direction
of Election herein, who were employed during the pay-roll period im-
mediately preceding the date of issuance of this Second Direction of
Election, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,,
but excluding those employees who have since quit or been discharged.
for cause and have not been rehired or reinstated prior to the date of
the election, and also excluding employees on strike who are not en-
titled to reinstatement, to determine whether or not they desire to be
represented for purposes of collective bargaining, by Plastic, Button
and Novelty Workers Union (Plastic, Molders and Novelty Workers
Union), Local 132, ILGWU, AFL.
MEMBERS HOUSTON and MURDOCK took no part in the consideration
of the above Supplemental Decision , Order, and Second Direction of
Election.
REPORT ON OBJECTIONS TO ELECTION WITH RECOMMENDATIONS
PRELIMINARY STATEDIENT
An election was held in the above-entitled proceeding on March 31, 1949, under
the direction and supervision of the Regional'Director for the Second Region;
on April 6, 1949, objections thereto were filed by the Employer; on May 11, 1949,
the Regional Director issued his Report on Objections ; and thereafter, on May 16,
1949, exceptions to his Report were filed by the Employer.
Briefly stated, the objections to the election alleged that there had been inter-
ference, restraint, and coercion by Union Business Agent Ralph Smith in that
the voters were obliged to mark their ballots in his presence and were not allowed
to vote in secret ; further, that the election did not take place at the place desig-
nated in the Notice of Election and that because of the p'.aysical lay-out of the
voting place, it was not possible to hold a proper and secret election. The
Regional. Director in this Report found that Smith had been in the voting area
in the morning when the Union observer at the election cast his ballot; that
Smith left the voting premises thereafter and was not present during the subse-
quent voting in the morning and afternoon; that the observers turned-their backs
while employees voted and it was impossible to see how the employees voted ;
that the observers had not complained of the conduct' of the election and had
signed the certificate that the election had been properly conducted; that the one
vote that was cast while Smith was present would not be decisive in any event;
that no prejudice resulted from holding the election in the physical location
GARY ENTERPRISES, INC. 433
-where the voting took place. The Employer's Exceptions alleged that Smith was
_present in the room where the election was held during the entire morning voting
:period ; that the observers did not turn their backs during the voting; that the
election was held in an unsuitable small room which had not been designated as
the voting place in the Notice of Election; that the failure of the Company
observer to object to the manner of conducting the election was not significant
because the observer was not familiar with or expert in election procedure.
By an Order, dated May 27, 1949, the Board directed that a hearing officer
-conduct a hearing in the above matter and that the hearing officer prepare and
cause to be served upon the parties a Report, containing findings as to the credi-
bility of witnesses and recommendations to the Board as to the disposition of the
aforesaid objections and exceptions.
Pursuant to notice, on June 2S and 29, 1949, and on July 26, 1949, a hearing
was held in the above matter before Rainey Donovan, Hearing Officer, in a hear-
ing room at the offices of the Second Region of the Board in New York, N. Y.
The Employer, the Union, and the Board were represented by counsel. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
a. General
'The election, the conduct of which has been placed in issue, was held on the
premises of Gary Enterprises, Inc., herein referred to as the Employer, on
March 31, 1949. The voting took place at a morning session of 8: 00 a. in. to
8: 15 a. in. and at an afternoon session of 4: 15 p. in. to 4: 45 p. in. The Board
Agent in charge of the election was Mildred Steiner ; the Union observer at the
morning voting period was employee James Hall and at the afternoon period the
Union observer was employee Gordon Williams; the Employer's bookkeeper,
Shirley Leed, acted as the Employer's observer at both the morning and after-
noon voting.
b. The Polling Place
The Notice of Election described the polling place as "Storage Room, First Floor
of Plant Outside Dressing Room." When Steiner arrived at the plant on the
morning of the election she introduced herself to Leed and asked Leed for the
location of the dressing room.' Leed pointed out the dressing room to Steiner
and explained that the room was being used by the employees to change their
clothes and, further, that the light in that room was poor. Both Steiner and
Leed concluded that under the circumstances the dressing room would not be a
suitable polling place, and it was decided to use the Company office in lieu thereof.
Whether Steiner or Leed first suggested the Company office as a polling place is
not of controlling importance, since neither Leed nor anyone else raised any issue
about the locus of the voting on March 31, 1949. It seems reasonably apparent
that both Leed and Steiner, when confronted with the dressing room situation,
referred to above, resorted to what appeared to them a reasonable improvisa-
1 It appears from Leed 's testimony that there was a dressing room on the main floor
of the plant and a storage room on the second floor of the plant . There was no location in
the plant corresponding to the polling place described in the Notice of Election.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of a polling place. In view of Steiners' position as the Board agent in
charge of the election, the ultimate responsibility of the situs devolved on her,
but there is no evidence, as has already been noted, that Leed objected to the
site chosen or expressed doubt as to the suitability of the office.
The election was conducted in the Company office, a room which opened on one
side into the plant and on the opposite side of which was a door leading to the
street. This office was approximately 12 feet long and 12 feet wide. The furni-
ture of the office consisted of a filing cabinet, desk, and chair on the side of the
office fronting on the street. On the plant side of the office was another filing
cabinet and a book case. The office also contained a table and chair used by the
election observers and by the Board Agent, as well as a desk and chairs 2
There was no voting booth used during the election and Board Agent Steiner
made no request or effort to secure a booth. The ballots, after being marked by
the voters, were deposited by the voters in a sealed ballot box located in the office
where the voting took place.
c. The Events at the Polling Place
In support of its posibion the Employer called as witnesses Shirley Leed, Aaron
Rosenthal, Marty Chasin, Milton Dembin, and Reuben Krauser. All of the fore-
going were and are employees of the Company and all, with the exception of Leed,
cast ballots in the election.' Leed was and is employed by the Company as a
bookkeeper, and she functioned as the Company's observer at the election.
Witnesses called by the Union were James Hall, Ralph Smith, Gordon Wil-
liams, and Mildred Steiner. Hall and Williams were and are employees who
voted in the election, and they acted as Union observers at the morning and after-
noon voting sessions, respectively. Smith and Steiner were and are the Union's
business agent and the Board Agent, respectively.
With some exceptions, the witnesses called by the parties were in sharp con-
flict as to what took place at the election.
The undersigned finds that the voter, when he entered the office which served
as the polling place, was instructed by Steiner to take his ballot and to mark it
secretly and then deposit it in the ballot box. The voter then went to the corner
of the room farthest from the table at which the observers and Steiner were
situated and marked his ballot, either on the wall. or on top of a book case or in
any other manner that he deemed appropriate and convenient, and deposited the
ballot in the ballot box. The voters either had their backs turned to the observers
and Steiner when they voted or wedged themselves into a sideways position
between the book case and the filing cabinet in the corner afore-described. The
exceptions to the general position of the voters when they marked their ballots are
furnished by the statements of Dembin and Krauser, which the undersigned
credits in this respect. Dembin and Krauser had each been instructed by Steiner
to mark his ballot in secret. Dembin marked his ballot at a desk in the polling
2 A diagram of the room, which is in evidence as Hearing Officer's Exhibit 1, illustrates
the relative positions of the above-described furniture in the office.
3 The Notice of Election described "foremen" as being within the eligible group of voters.
In the Company's employ there are three foremen (Rosenthal, Chasin, and Dembin) and
a "supervisor," the latter being described as the "general foreman" or superintendent.
The plant has three shifts, with a foreman for each shift. The foremen are hourly paid.
Dembin, the foreman on the 4 to 12 shift, testified that three employees worked with him
on the shift. He stated that his job "is to see that the place runs right , machines are
going properly. I also run. the machines, relieving for lunches . . . ." Dembin testified
that he assigned work and could recommend disciplinary action, that he was " in charge"
of his shift since there was no "supervisor" present, and that he received 65¢ to 70¢ more
per hour than the highest paid man on his shift.
GARY ENTERPRISES, INC. 435
place. The desk was approximately in the middle of the room but at the side of
the wall farthest from the location of the election officials. Krauser took his
ballot just outside the office, marked the ballot on a table outside the office door
leading to the plant, returned to the office and deposited the ballot in the box 4
Steiner testified that she had instructed the observers to turn their backs to the
voters while the latter were marking their ballots. She testified that she had
turned her back while the balloting took place and that the observers had done
likewise. All observers, Leed, Hall, and Williams, testified that their backs were
not turned to the voters. The undersigned finds that the observers were facing
in the general direction of the voters while the latter marked their ballots and
that the voters were in view of the observers and of anyone else in the room.'
d. The Presence of Smith at the Polli'ay Place
Coming now to the issue of Union Business Agent Smith's presence in or
absence from the polling place during the election, the record was as follows :
Leed testified that Smith was requested by Steiner to leave the office but that
he was present when the first voter voted at the beginning of each session, morning
and afternoon, respectivley. Leed said that she slid not know whether or not
Smith was present or absent while the balance of the voting took place. Rosen-
thal, Chasin, and Dembin testified that Smith was present in the office when
each of them respectively, voted.' Hall testified that when he came into the
office Smith was present. Hall was unable to recall whether Smith was present
or absent when he voted or whether Smith was present or absent thereafter.
Krauser testified that Smith was in the office when he went in to vote. Krauser
took his ballot outside, marked it, and then returned to the office, where he
deposited the ballot in the box. He testified that Smith was in the office when
he (Krauser) deposited his ballot. In his testimony iSmith stated that he had
been present in the office when the first man (Hall ) voted in the morning but
that he had not been present thereafter. Williams testified that Smith was not
in the office when he cast his ballot. He also testified that Smith left the office
after being instructed to do so by Steiner at the inception of the afternoon ses-
sion. Steiner testified that Smith had been in the office in the morning but that
he had left at her request before the first man voted. She testified to the same
effect with respect to-the afternoon session. On cross-examination Steiner ad-
mitted that she was in doubt about her recollection of whether Smith was present
when the first man voted.
The undersigned, on the whole, considers Shirley Leed to have been a credible
witness. She impressed the undersigned as a witness who in her desire to relate
the facts endeavored neither to overstate nor to understate the events occurring
at the election. Leed testified that at the morning and afternoon sessions
Steiner had requested Smith to leave the office; that with respect to the morn-
ing voting, she (Leed) believed that Smith walked out but she thought that he
had returned, since he was present at the end of the morning voting ; that in
the afternoon Smith was present when the first voter voted; that Smith "came
back. He had been out and returned after we had finished balloting" (in the
afternoon). It is significant that Leed, the Company's observer and a Company
witness, felt unable to testify that Smith had remained in the office while voters,
*Conduct of the type testified to by Krauser was not referred to in either the objec-
tions or exceptions.
' The one exception was Krauser, who apparently was unobserved when he left the room
to mark his ballot.
6 Rosenthal and Chasin voted in the morning ; Dembin voted in the afternoon. The
Company's exceptions referred to Smith's presence at the morning voting.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than the first ones in the morning and afternoon, cast their ballots.'
Rather, with, respect to the morning she believed that Smith, after the first
vote was cast, had walked out after Steiner's request. This testimony, coupled
with her more positive statement that in the afternoon Smith was present
when the first man voted-that Smith had then "been out and returned after
we had finished balloting," convinces the undersigned, and it is found, that
Smith was present when the first vote was cast in the morning and in the after-
noon and that he then left the room, returning at the end of the two periods of
balloting, respectively. It is further found that Smith was not present in the
polling place at other times during the balloting.
The undersigned also finds that the Company observer, Leed, at the comple-
tion of the balloting signed the formal documents of election, including a certi-
fication that "the counting and tabulating were fairly and accurately done and
that the secrecy of the ballots was maintained and that the results were as
indicated ...."' It is further found that Rudolph Fritzhand, president of
the Company, came to the polling place in the morning after completion of the
balloting while the observers, as well as Steiner and Smith, were still present and
that he raised no question on that day as to the place or conduct of the election.
There is no evidence that Fritzhand knew or was apprised of the details of the
•election that day.
CONCLUSIONS AND RECOMMENDATIONS
The undersigned has considered the above findings in the light of the principles
laid down by the Board for the conduct of elections. The fact that the Company
observer apparently believed that the election had been properly conducted has
been given due consideration, and an attempt has been made, and unrealistic
.standards of all democratic, including the Board, elections.
The Board has well stated its duty with respect to the maintenance of election
:Standards:
In election proceedings, it is the Board's function to provide a laboratory
in which an experiment may be conducted, under conditions as nearly ideal
as possible, to determine the uninhibited desires of the employees. It is our
duty to establish these conditions ; it is also our duty to determine whether
they have been, fulfilled. When, in the rare extreme case, the standard
drops too low, because of our fault or that of others, the requisite laboratory
conditions are not present and the experiment must be conducted over again.
[Matter of General Shoe Corp., 77 NLRB 124.1
In the opinion of the undersigned, regardless of whether the voters in the
instant case were able to mark their ballots in the corner of a relatively small
room in the presence of Union and Company representatives without the tenor
of their vote being known, the conditions were far from those of the "laboratory"
referred to by the Board. High standards of election procedure are the keystone
of not only the law, administered by the Board but of the entire democratic
process. On all the facts of this case it is concluded that the purpose of the
Act will be best served by setting the election aside, and it is so recommended.
RAMEY DONOVAN,
Hearing Officer.
SEPTEMBER 1 , 1949.
' Hall, one of the Union observers , testified that Smith was present when he came in to
vote . He stated that he could not remember whether or not Smith was in the room
at any time except when he (Hall ) had first entered . In view of the testimony of other
witnesses , particularly Smith's admission that he was in the room while Hall voted, the
undersigned was not impressed by Hall's reliability as a witness.
. 8 Leed testified that she did not understand the statement , "We acknowledge service
,of this tally."