Holmes & Barnes, Ltd.

National Labor Relations Board - Board Decisions

Oct 21, 1955

114 N.L.R.B. 630 (N.L.R.B. 1955)

630 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
Subsequent to the hearing, the Employer filed with the Regional Di-
rector certain affidavits bearing on its offer of proof made at the hearing
which was rejected by the hearing officer. The Regional Director-
caused an investigation to be made and in his report to the Board stated
that none of the authorization cards submitted by the Petitioner are
dated. For this reason alone, and without considering the Employer's
other contentions, we are administratively satisfied that the Petitioner's
showing of interest is inadequate. The Board requires that the show-
ing of interest be current. Thus the petition form provided by the
Board for seeking a certification of representatives provides that there
must be submitted with the petition proof of interest in the form of
dated authorization cards. Accordingly, we find that further proceed-
ings are not warranted inasmuch as the evidence of interest submitted
by the Petitioner, failing to meet the requirements of the Board, is in-
sufficient. We shall therefore grant the request of the Employer and
dismiss the petition.
[The Board dismissed the petition.]
Holmes & Barnes, Ltd. and General Truck Drivers, Warehouse-
men & Helpers, Local Union No. 5, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen & Helpers of Amer-
ica, A. F. L., Petitioner. Case No. 15-RC-1184. October 21,1955
DECISION AND CERTIFICATION OF REPRESENTATIVES
On November 19, 1954, pursuant to a stipulation for certification
upon consent election, an election among the Employer's truckdrivers
and warehousemen was held at Baton Rouge, Louisana, under the di-
rection and supervision of the Regional Director for the Fifteenth
Region. The tally of ballots, which was served upon the parties, shows
that`of 26 eligible voters 15 votes were cast for the Petitioner, 11 were
cast against, and 1 ballot of a voter not appearing on the eligibility list
was challenged. On'advice of counsel, the Employer's observer, after
signing the certification that the election was fairly conducted,
scratched out his name and refused to sign the tally.
Thereafter the Employer filed timely objections to the conduct of
the election, the Petitioner filed a reply, and the Employer filed a
supplemental memorandum of objections.
After investigation based upon the interview of many witnesses, the
Regional Director on April 29, 1955, filed his report on objections,
recommending that the objections be overruled and the Petitioner
certified. The Employer thereupon filed exceptions to the report and
a memorandum brief in,support of its exceptions.
114 NLRB No. 100.
HOLMES & BARNES, LTD. 631
The Board has now considered the objections, the Petitioner's reply,
the report, the exceptions and the brief in support of exceptions, and
makes the following findings of fact :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent the
employees of the Employer.
- 3. A question of representation affecting commerce exists concerning
employees of the Employer, within the meaning of Section 9 (c) and
&ction2 (6) and (7) of the Act.
4. The following employees constitute- a unit appropriate for the
:purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
All truckdrivers and warehousemen at the Employer's Baton Rouge,
Louisiana, operation, excluding checkers in the warehouse,' office cler-
ical employees, professional employees, guards and/or watchmen, and
supervisors as defined in the Act.
5. For the reasons set forth below we adopt the Regional Director's
.recommendations that the objections be overruled and the Petitioner
,certified. The Employer objected essentially as follows:
1. Employees who had not voted were allowed to mingle at the polls
with those who had.
2. The Board agent refused to contact an eligible voter, one Schaffer,
who had not been seen to vote.
3. Twenty-six unchallenged ballots were cast but only 25 voters
were checked off on the eligibility list, indicating that someone obtained
a ballot without identification and "chain voting" may have been in-
dulged in.
As to the first objection, it appears that the election was held in the
Employer's flour room which had but one entrance and, according to
Employer, was half full of flour. The Employer does not dispute the
Regional Director's finding that the agent on his own initiative asked
those employees who had voted to leave as soon as he was aware that
they were mingling with employees who had not voted. Inasmuch as
the Employer offers no proof that campaigning or conduct affecting
the secrecy of the ballot actually did occur during the period in ques-
tion, we shall overrule the objection as without merit.
As to the second objection, the Regional Director found that the
agent refused to seek out the only voter not checked off the eligibility
list because he considered the posted notice and the loudspeaker an-
nouncement of the election to have been adequate and because it was
possible that the employee concerned did not desire to vote. Inasmuch
as a Board agent has no duty to see that every eligible employee votes,
we shall overrule this objection as without merit.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the remaining objection, the Regional Director found from his
investigation that -employee Schaffer did rightfully cast his ballot
but that the observers failed to check off his name on the eligibility
list. As the report shows, after the election the tally disclosed that
the only eligible voter whose name was not checked off as having
voted was one Charles Schaffer, who was immediately questioned at
the Employer's suggestion and who swore -before all the parties that
-he had cast his ballot. Later, the investigation disclosed that numer-
ous employees had seen Schaffer in the voting area although none had
actually seen him deposit his ballot in the ballot box. The Employer's
observer could not remember having seen him in the voting area at
all. Two witnesses, one of whom said he voted early, stated that while
they were voting, Schaffer was called away by his supervisor without
voting, but two other witnesses heard the supervisory call and did
not see Schaffer leave in response while they were in the voting area.
Schaffer denied hearing his supervisor's call and swore that he did
not leave the polls without voting. The supervisor, in an unsigned
statement, said that he did call for some one to help him, but did .not
call Schaffer specifically and did not recall anyone responding. He
also stated that he had told employees Jefferson and Schaffer to go,
and vote, 'and that they had left the room where he was, apparently
in response to his instruction. Jefferson corroborated Schaffer's'state-
ment that he, Jefferson, was just ahead of Schaffer in the voting line,
and recalled that as he left the voting booth Schaffer was coming
toward it with a ballot in his hand., Another employee stated that
Jefferson and Schaffer werebehind him in the voting line, and another
that he saw Jefferson and Schaffer together in the voting area. Em-
ployee Doss also saw Schaffer enter the voting booth with a ballot in
his hand. Schaffer stated that the agent handed him his ballot, but
did not ask his name as he had in Jefferson's case'. From the foregoing
we conclude, as did the Regional Director, that Schaffer did properly
cast his ballot in the election as he swore he did.
The investigation also disclosed that some voters had their names
checked off the eligibility list in groups of 2 and' 3 before receiving
their ballots and without their names being asked by the agent, and
that 1 picked up his own ballot. This, of course, is not in strict
accordance with the Board's instructions to its election agents and
the decorum it strives to enforce. But the investigation also disclosed
that this informal method of identification which was used to some
extent and is difficult to control in relatively small elections where
the observers are acquainted with most of the participants, plus the
isolated instance of one voter picking up his own ballot, did not result
in any ineligible voter receiving a ballot and participating in the
election.
HOLMES & BARNES, LTD. 633
In support of its position that the conduct of this election gave rise
to the possibility of "chain voting," the Employer describes it as a
practice that can only occur "when one of the parties to an election
obtains a blank ballot without being seen to enter the voting booth
with the same,"' marks it for his choice and passes it on to, another
voter to deposit in the ballot box, the latter voter, in turn, relinquish-
ing the blank ballot which he receives in the line but does not cast,
and which can then be premarked for the next voter. The Board
considered an allegation of chain voting in the case of Swift c
Company, 88 NLRB 1021, involving approximately 160 eligible voters.
In addition to the valid votes cast, the ballot box contained a marked
sample ballot that had been used as a campaign leaflet, but the Board
found that that alone would not indicate that chain voting had oc-
curred. Here, with a much smaller election, the chance of chain voting
having occurred is even more remote. We find that the "extra"
ballot, explained as it is by the affidavit of Schaffer and the corrobora-
tive evidence resulting from the investigation, is insufficient to show
that chain voting occurred. Accordingly we overrule the Employer's
objections on this ground.
The Employer urges a new election or, alternately, a hearing in
which a hearing officer would resolve the conflicts in testimony. In
this connection we observe that, absent the unwarranted speculation
of chain voting, the vote in question is insufficient to affect the out-
come of the election. We also conclude that the minor irregularities
complained of did not have any impact upon the results of the elec-
tion. In these circumstances we see no reason to set aside the elec-
tion or prolong the proceeding with a hearing. As the tally of ballots
shows that the Petitioner has secured a majority of the valid votes
cast in the election, we shall certify it as the bargaining representative
of the employees in the appropriate unit.
[The Board certified General Truck Drivers, Warehousemen &
Helpers, Local Union No. 5, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, A. F. L., as
the designated collective-bargaining representative of the employees
of Holmes & Barnes, Ltd., in the unit found appropriate.]
MEMBER LEEDOM , dissenting :
I would withhold passing judgment on the validity of this election
until a hearing has been held. For, I am unable to conclude on this
record that this election has been conducted in accordance with our
usual standard of care in conducting elections.
Even assuming, without deciding, that such patent irregularities
as checking off voters in groups of 2 or 3 before they are given bal-
lots, not asking voters their names as they are handed ballots and
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having ballots so easily obtainable that 1 voter got his without having
it handed to him, afford an insufficient basis for setting aside an elec-
tion, I cannot, in this state of the record, reach the same conclusion
concerning this alleged irregularity : Twenty-six unchallenged ballots
were cast while only 25 voters were checked off on the eligibility list,
a discrepancy which suggests the possibility that an unauthorized
ballot may have been cast or that chain voting may have occurred,
thereby voiding the election. While the Regional Director disposed
of this allegation by finding that Schaffer, the only employee not
checked off, actually cast the 26th ballot but that the observers in+
advertently failed to check off his name, he has done so on the basis
of conflicting evidence. Moreover, the Employer has excepted to
these findings, thereby raising substantial and material factual issues.
The regularity of elections is of vital importance to the administra-
tion of the Act. Unless the requisite regularity is present, an elec-
tion fails of its purpose and must be set aside. I would, therefore,
prefer a full exploration of the issue relating to, the 26th ballot, as
is our practice where substantial and material factual issues exist,,
before deciding that this election has served its purpose. This can be
done by directing the requested hearing where testimony can be taken
under oath and exposed to the searching light of cross-examination.
I would so order.
MEMBER PETERSON took no part in the consideration of the above
Decision and Certification of Representatives.
1 Section 102 . 61 of the National Labor Relations Board Rules and Regulations , Series 6,
as amended provides : "If exceptions are filed , either to the report on challenged ballots,
objections , or both if it be a consolidated report , and . . . it appears to the Board that
such exceptions raise substantial and material factual issues , the Board may direct the
Regional Director-or other agent of the Board to issue and cause to be served upon the
parties, a notice of hearing on said exceptions before a hearing officer."
Kenedy Compress Company and International Chemical Work-
ers Union, AFL. Case No. 39-CA-418. October 24,1955
DECISION AND ORDER
Upon charges duly filed by International Chemical Workers Union,
AFL, herein called the Union, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Sixteenth
Region of the Board, issued a complaint dated August 12, 1954,
against Kenedy Compress Company, herein called the Respondent, al-
leging that the Respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (a) (5) and (1) and
Section 2 (6) and (7) of the Act. Copies of the charges, the com-
114 NLRB No. 105.