Hanford Sentinel

National Labor Relations Board - Board Decisions

Apr 12, 1967

163 N.L.R.B. 1004 (N.L.R.B. 1967)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has engaged in conduct violative of Section 8(a)(5) and (1)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record, and pursuant to
Section 10(c) of the Act, it is recommended that the
complaint in this matter be dismissed in its entirety.
Hanford Sentinel , Inc. d/b/a Hanford Sentinel
and Fresno Printing Pressmen 's Union
No. 159, International Printing Pressmen
and Assistants ' Union of North America,
AFL-CIO, Petitioner. Case 20-RC-6974.
April 12,1967
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
By CHAIRMAN MCCULLOUCH AND MEMBERS
JENKINS AND ZAGORIA
Pursuant td a Decision and Direction of Election
issued by the Regional Director for Region 20, an
election by secret ballot was conducted on July 15,
1966, under his direction and supervision in the unit
found appropriate. At the conclusion of the election,
the parties were furnished a tally of ballots which
showed that of approximately 14 eligible voters, 10
cast ballots, of which 6 were for and 4 against, the
Petitioner. Thereafter, the Employer filed timely
objections relating, inter alia, to the conduct of the
election.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Regional
Director conducted an investigation of the objections
and, on September 8, 1966, issued and duly served
on the parties his Supplemental Decision and
Certification of Representative, in which he
overruled the objections in their entirety.
Thereafter, the Employer filed a timely request for
review of the Regional Director's Supplemental
Decision.
By telegraphic orders dated December 19, 1966,
and January 10, 1967, the National Labor Relations
Board granted the request for review and stayed the
certification of representative. The Petitioner then
filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Libor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
Upon the entire record in this case, including the
facts set forth in the Regional Director's
Supplemental Decision, the request for review, and
the Petitioner's brief, the Board makes the following
findings:
The Employer, which operates a daily newspaper,
objected to the refusal of the Board agent to allow
163 NLRB No. 135
two eligible voters, Carrell and Gonsalves, to cast
ballots. Objection 2 states:
Just before 10:00 a.m., on July 15th, the
Board Agent made an announcement that it was
about time to start the voting. It was a rather
subdued statement, and with the commotion in
the room due to noisy machinery and activity
his announcement was not generally heard.
Messrs. James Carrell and James Gonsalves,
however, were just then going by the polling site
on their way to the darkroom and heard the
announcement. They stopped and asked to be
permitted to vote. The Board Agent told them
that they could not vote yet, that they would
have to wait until the polls opened or come back
after the polls opened. So they rushed on to the
darkroom, which is in the same area and only a
few feet away from where the polls were set up,
where they had work in process that would not
allow them to stand around and wait. Mr.
Carrell went along to help Mr. Gonsalves
expedite completion of the work so that they
could get back and vote. Subsequently, the
Board Agent personally notified all the other
employees except Carrell and Gonsalves to
come and vote. Carrell and Gonsalves were not
able to keep exact account of the time while in
the darkroom but they knew the operation that
they were engaged in would take only ten,
possibly fifteen, minutes. They walked out of
the darkroom to vote and found the polls had
just closed. Mr. Carrell immediately went to the
Board Agent and insisted that they had not had
an opportunity to vote and that they wanted to
vote. The Board Agent said he was sorry but the
voting was over with, and there was nothing that
could be done. It was noted, however, that no
opening or counting of the ballots had yet been
undertaken.
The Regional Director, without questioning the
facts alleged in the objection, found that the polls
were open from 10 a.m. to 10:15 a.m., as scheduled;
that both employees had read the notice of election
and were aware that the polling period was from
10 a.m. to 10:15 a.m.; and that the location of the
polling place was near the darkroom. He stated that
"Carrell and Gonsalves could have interrupted the
operation of hand loading the film magazine of the
photon machine at any time during the process
without damage to the film" and cast their ballots.
He concluded that the two employees had ample
opportunity to vote during the polling period, and
that there was no abuse of discretion in the Board
agent's refusal to permit them to vote after the polls
closed.
The Employer's request for review disputes the
Regional Director's finding that the employees could
have left the darkroom to vote during the scheduled
voting period and argues that there was no
justification for the Board agent's refusal to allow
them to vote. The Petitioner's brief notes that the
KONO-TV-MISSION TELECASTING CORP. 1005
facts are "relatively simple and for the most part not
in dispute," and incorporates the statement of facts
in the request for review insofar as that statement is
consistent with the Regional Director's findings.
For purposes of our Decision herein, we find it
unnecessary to resolve the factual conflict as to
whether the two employees could have interrupted
their work to cast their ballots. In the special
circumstances of this case, bearing in mind
particularly: (a) the brief duration of the voting
period; (b) the fact that the Board agent was aware
that Carrell and Gonsalves had earlier presented
themselves to vote; (c) the fact that they again
sought to vote only minutes after the polls were
declared closed, and that the ballot box had not been
opened nor the tally of ballots started at that time,
we are of the opinion that the Board agent, in the
proper exercise of his discretion, should have
permitted Carrell and Gonsalves to cast ballots.
Therefore, and as the addition of two valid ballots of
the employees in question may have affected the
results of the election, we conclude that it would
best effectuate the policies of the Act to hold a new
election. Accordingly, we hereby sustain the
objection, and we shall set aside the election and
direct that a new one be conducted.
ORDER
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and Charging Party filed exceptions to the
Trial Examiner's Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions' and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
' The Charging Party incorporated in its exceptions a motion to
amend the complaint and a motion to remand and reopen the
record to take evidence thereon. As the motions to amend and
reopen are lacking in merit, they are hereby denied.
It is hereby ordered that the election conducted
herein on July 15, 1966, be, and it hereby is, set
aside.
[Text of Direction of Second Election' omitted
from publication.]
I An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 20 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 Excelsior Underwear Inc., 156 NLRB 1236
KONO -TV-Mission Telecasting Corporation
and International Brotherhood of Elec-
trical Workers, Local 2206 , AFL-CIO/
CLC. Case 23-CA-2395.
April 12, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 1, 1966, Trial Examiner Sydney S.
Asher, Jr., issued his Decision in the above-entitled
proceeding , finding that the , Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
163 NLRB No. 137
- TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, JR., Trial Examiner: On May 20,
1966, International Brotherhood of Electrical Workers,
Local 2206, AFL-CIO/C-LC, herein called the Union, filed
charges against KONO-TV-Mission Telecasting
Corporation, San Antonio, Texas, herein called the
Respondent. On June 29, 1966, the General Counsel
issued a complaint alleging that since on or about May 16,
1966, the Respondent, by certain specified conduct, has
interfered with, restrained, and coerced its employees;
and that at all times since June 29, 1965, the Respondent
has failed and refused to bargain collectively with the
Union as the bargaining representative of its, employees in
an appropriate unit , although a majority of the employees
of the Respondent in the unit had, prior thereto, selected
the Union as their bargaining representative. It is alleged
that this conduct violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended (29 U.S.C. Sec.
151, et seq.), herein called the Act. Thereafter the
Respondent filed an answer admitting that the unit set
forth in the complaint was appropriate and that the Union
is, and at all material times has been , the exclusive
bargaining representative of all employees in that unit, but
denying that it had committed any unfair labor practices.
Upon due notice, a hearing was held before Trial
Examiner Syndey S. Asher, Jr., on October 4, 1966, at San
Antonio, Texas. All parties were represented and
participated fully in the hearing. At the close of the
hearing the Respondent moved to dismiss the complaint in
its entirety, for lack of proof. Ruling on this motion was
reserved . For reasons appearing below , this motion is now
granted. After the close of the hearing, the General
Counsel and the Respondent filed briefs. These have bt en
duly considered.