Howard Cooper Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1958

121 N.L.R.B. 950 (N.L.R.B. 1958)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Cooper Corporation and Garage Employees Union Local
No. 44, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Petitioner. Case No.
19-RC-2123. September 22, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election 1 dated May 9,
1958, an election by secret ballot was conducted on May 23, 1958,
under the direction and supervision of the Regional Director for
the Nineteenth Region, among the employees in the unit found appro-
priate in the above-mentioned Decision. Thereafter, a tally of ballots
was furnished the parties, showing that, of 10 voters casting valid
ballots, 6 voted for the Petitioner, 3 voted against the Petitioner,
and 1 cast a challenged ballot.' Thereafter, the Employer filed timely
objections to the conduct of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation of the Employer's objec-
tions. On June 24, 1958, he issued and duly served upon the parties
his report on objections, in which he recommended that the Em-
ployer's objections be overruled and that the Petitioner be certified
as the collective-bargaining representative of the employees in the
appropriate unit. Thereafter, the Employer filed timely exceptions
to the report on objections.
Upon the entire record in this case, the Board finds : 3
The Objections
At the original hearing herein, the Employer sought to exclude
Horace Johnson, the shop expediter, from the unit as a managerial
employee. In its Decision and Direction of Election, the Board per-
mitted Johnson to vote subject to'challenge as to his managerial status,
the record not having established whether Johnson's pledging of credit
was sufficient to constitute him a managerial employee. At the
election, the Petitioner used Johnson as an observer.
The Employer's objections concern the Petitioner' s use of Johnson
as an observer, the Employer contending that Johnson was dis-
qualified to act as observer because he had been permitted by the
Board to vote subject to challenge as to his managerial status and
1 Unpublished
2 The challenged ballot was insufficient to affect the results of the election.
3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member
panel [Members Rodgers, Bean , and Jenkins].
121 NLRB No. 126.
HOWARD COOPER CORPORATION 951
because he was in fact a managerial employee. The Regional Direc-
tor found the objections untimely and therefore without merit. We
agree with the Regional Director. Although apprised by the Decision
itself as to Johnson's challenged status and although afforded an
opportunity to register its opposition prior to the election, the Em-
ployer at -the preelection 'conference failed to oppose Johnson's use
as an observer. This alone would constitute ample grounds for re-
fusing to permit the raising of the preelection issue for the first time
in this postelection proceeding.' Furthermore, even assuming, but
without deciding, that Johnson, has authority to pledge credit in a
sufficient amount to establish his managerial status, that fact alone
would not constitute sufficient ground for setting aside the election
herein. The Board's prohibition against the use of persons closely
allied with management to act as election observers is based on the
likelihood that their presence gat the polls may unduly influence em-
ployees.' In, our opinion, Johnson's status, under the circumstances
herein, does not so closely identify him with management as to war-
rant the conclusion that his presence as an election observer could be
construed as an endorsement of the Petitioner by the Employer.'
In its exceptions, the Employer now for the first time alleges that
Johnson was a supervisor and a union organizer. It contends that it
had previously raised the supervisory issue when it argued at the
hearing and in its objections that Johnson was a managerial employee.
We find no merit in its contention. Supervisory status is specifically
defined in Section 2 (11) of the Act 7 and is not equatable with man-
agerial status.' Therefore, as the matter relating to Johnson's alleged
status as a supervisor and a union organizer was raised for the first
time in its exceptions, we find that they- are untimely and cannot be
considered.'
In accord with the Regional Director's recommendation, we hereby
overrule the Employer's objections and we shall certify the Petitioner
as the exclusive representative of the Employer's employees.
*Westinghouse Electric Corporation , 118 NLRB 1625 , 1626; Northrop Aircraft, Inc.,
106 NLRB 23, 26
5 Cf. Owens -Parks Lumber Co ., 107 NLRB 131 ; Plant City Welding and Tank Company,
119 NLRB 131.
Ibid.
7 Section 2 ( 11) of the Act provides as follows
The term "supervisor " means any individual having authority , in the interest of
the employer , to hire, transfer, suspend, lay off, recall, promote, discharge , assign,
reward, or discipline other employees, or responsibly to direct them, or to adjust
their grievances , or effectively to recommend such action , if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
$ Further, we note that the original record and the Employer 's objections and briefs
do not indicate that Johnson had supervisory authority as defined in the Act, but merely
referred to his authority to pledge the Employer 's credit.
9 Oakland Scavenger Company, 100 NLRB 262, 263, footnote 2. See cases cited in
footnote 4, supra.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board certified Garage Employees Union Local No. 44, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the designated collective-bargaining repre-
sentative of the Employer's production and maintenance employees
in the unit found appropriate.]
Boyles Galvanizing Company of Iowa and District Lodge 131,
International Association of Machinists , AFL-CIO, Petitioner.
Case No. 18-RC-3594. September 22, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF. REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board herein on June 17, 1958,1 an election by secret ballot was con-
ducted on July 10, 1958, under the direction and supervision of the
Regional Director for the Eighteenth Region among the employees
in the unit found appropriate by the Board. At the close of the
election, the parties were furnished a tally of ballots which showed
that there were approximately 24 eligible voters, of whom 23 voted-
11 for, and 4 against, the Petitioner, with 8 challenged. The chal-
lenges were sufficient in number to affect the results of the election.
Thereafter the Employer filed timely objections to conduct affecting
the results of the election. In accordance with the Rules and Regu-
lations of the Board, the Regional Director investigated the challenges
and the objections and on July 31, 1958, issued and served on the
parties his "Report on Challenged Ballots and Objections and Recom-
mendation For Certification of Representative." In his report, the
Regional Director found the objections without merit and recom-
mended that they be overruled. As to the 8 challenged ballots, the
Regional Director recommended that the challenges to ballots cast
by Fred Gouge and Pedro Trevino be sustained and that no disposi-
tion be made of the 6 remaining challenged ballots inasmuch as they
could not affect the results of the election. Finally, the Regional
Director recommended that the Petitioner be certified. On August 6,-
1958, the Employer filed timely exceptions to the Regional Director's
report.
The Board 2 has considered the objections, the exceptions, and the
entire record in the case and finds as follows :
The Employer's objections allege that on or about July 9, 1958, one
of its employees, Cris Belanos, who later served as an election observer
i Unpublished.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers, Bean,
and Fanning].
121 NLRB No. 128.