Jarez Burns & Sons, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1947

72 N.L.R.B. 18 (N.L.R.B. 1947)

In the Matter Of JABEZ BURNS & SONS, INC., EMPLOYER and LOCAL 365,
UAW-CIO, PETITIONER
Case No. -R-7108.Decided January 10, 1947
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Following the filing of a petition alleging that a question affecting
commerce has arisen concerning the representation of employees of
the Employer, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, the Employer and the Petitioner entered into a "Stipula-
tion for Certification Upon Consent Election," and an election was
conducted in accordance with the said stipulation and the Rules and
Regulations of the Board.
The election was conducted on October 22, 1946, and upon its con-
clusion the parties were served with a Tally of Ballots in accordance
with the Rules and Regulations of the Board. The Tally shows that
of the approximately 99 eligible voters, 97 cast valid ballots, of which
50 were for, and 47 against, the Petitioner; there were 1 challenged
ballot and 1 void ballot.
On October 26, 1946, the Employer filed objections to the conduct
of the election, alleging as follows :
1. The ballot of one, Rovinsky, was commingled with other ballots
even though it had been challenged on the ground that Rovinsky was
not an eligible voter, having allegedly quit between the eligibility date
and the date of the election.
2. The ballot marked void should have been counted as a vote cast
in the election for the purpose of determining the Petitioner's
majority.
On October 30, 1946, the Regional Director, following investigation,
issued his Report on Objections in which he found the objections to
be without merit and in which he recommended that the objections be
overruled by the Board. Thereafter, on November 4, 1946, the Em-
ployer filed Exceptions to the Report on Objections, repeating the
grounds for its objections and further urging that the challenged
ballot listed in the Tally be opened and counted.
72 N. L R. B., No. 5.
18
JABEZ BURNS & SONS, INC. 19
Upon the entire record in the case, including the Stipulation, the
Objections, the Report on Objections, and the Exceptions thereto, the
Board makes the following :
FINDINGS OF FACT
A. The Rovinsky ballot
The Stipulation provided that "The eligible voters shall be those
employees included within the unit, who appear on the Employer's pay
roll [for the week ending October 13, 1946] . . . but excluding any
employees who have since quit . . . and have not been rehired or
reinstated prior to the date of the election."
On October 15, 1946, Rovinsky, whose name appeared on the pay
roll governing voting eligibility, gave notice to the Employer of his
intention to terminate his employment on October 26. On October
22, he appeared at the polls and cast his ballot. Thereafter, he worked
through October 26, 1946, before terminating his employment. The
Employer argues that Rovunsky was not an employee eligible to vote.
The observer for the Employer challenged Rovinsky's ballot at the
election. The Board agent present gave his opinion as to the validity
of the challenge, and the challenge was withdrawn by the Employer's
observer. The Employer admits in its Exceptions that the observer
was given the opportunity to press his challenge to Rovinsky's ballot,
having been assured that it would be accepted, but chose instead to
withdraw it. In view of the failure of the Employer to exercise its
power of challenge, it cannot now be heard to object to the-election .1
In any case we find that Rovinsky was eligible to participate in the
election. As already indicated, his name appeared on the pay roll de-
terminative of eligibility, and he was employed by the Employer at the
time of the election. For these reasons, we overrule the Employer's
objection with regard to the Rovinsky ballot.
B. The void ballot
The ballot listed in the Tally as void was unmarked, the voter having
failed to indicate whether he wished to vote for or against the Peti-
tioner. The Employer argues that in an election in which the name
of only one union appears on the ballot, an unmarked ballot must be
counted as a "participation" in the election. Thus, it asserts, such a
ballot must be counted in determining whether or not the union has
received a majority vote. We do not agree. We think that an un-
marked ballot must be regarded as a failure to vote by one qualified
to do so, and iaust, therefore, be considered as void. We are also of
the opinion that only the valid ballots cast should be considered in
IN L R. B. v A. J. Tower Co., 67 S. Ct. 324 ( December 23, 1946).
20- DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
ascertaining whether or not a union has received a majority vote.'
Accordingly, we overrule the Employer's objection with respect to
the void ballot.
C. The challenged ballot
It is clear that the ballot listed in the Tally as challenged cannot
affect the results of the election. Therefore, we find it unnecessary
to pass upon its validity.
D. Conclusions
Inasmuch as the Petitioner has received a majority of the valid votes
cast plus the challenged ballot, we shall certify it as the exclusive
bargaining representative of all the employees in the unit hereinafter
found appropriate.
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Employer within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
2. All production and maintenance employees of the Employer's
plant at 11th Avenue and West 43rd St., New York City, including
porter-watchman, but excluding the full-time watchman, all employees
of the erecting department, assistants to the production manager, office,
clerical, sales and engineering employees, draftsmen, and all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that Local 365, UAW-CIO, has been desig-
nated and selected by a majority of the employees of the above-named
Employer in the unit hereinabove found by the Board to be appro-
priate, as their representative for the purposes of collective bargaining,
and that pursuant to Section 9 (a) of the Act, said organization is the
exclusive representative of all the employees in such unit for the pur-
poses of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Certification of Representatives.
2 See Matter of Semi-Steed Casting Company , 66 N. L. it. B. 175, and cases cited therein.