K. Van Bourgondien & Sons, Inc.,

National Labor Relations Board - Board Decisions

May 26, 1989

294 N.L.R.B. 268 (N.L.R.B. 1989)

268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
K. Van Bourgondien & Sons, Inc., Employer-Peti-
tioner and Local 810, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO. Case 29-RM-
752
May 26, 1989
SUPPLEMENTAL DECISION,
DIRECTION, AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election conducted December 18, 1987, and chal-
lenges, and the attached administrative law judge's
decision recommending disposition of them.' The
Board has also considered the Regional Director's
supplemental report on objections, dated May 17,
1988, recommending disposition of the Union's
motion for reconsideration of Objection 1.
The Board has reviewed the record in light of
the exceptions and briefs.
1. The Board adopts the judge's decision recom-
mending that the objections be overruled. With the
exception of the judge's recommendation concern-
ing challenges to second-shift employees, the Board
also adopts all of the judge's recommendations
about challenged ballots.
The Employer operates a second shift on 4
weekday afternoons and early evenings and on Sat-
urday mornings. The shift operates about 24 hours
a week. Employees on the shift are engaged in
commercial packaging, performing the same duties
as some employees on the 8-hour, first shift.
At the time the Employer recognized the Union
in 1985, it employed only students on the second
shift. The first collective-bargaining agreement be-
tween the Employer and the Union, effective from
February 27, 1985, through February 26, 1987, did
not refer expressly to second-shift or part-time em-
ployees, but specifically excluded "student employ-
ees." It defined student employees as "those em-
ployees who are hired . . . normally for Saturday
and/or a second shift scheduled after school hour
operation or when school is not in session. Not
more than 22-1/2 hours a week except Easter week
or mid-winter recess."
At the time of the election, conducted on De-
cember 18, 1987, the second-shift employed nine
adults, who had been hired after the collective-bar-
gaining agreement expired. They performed the
' On April 27, 1988, the Board issued a Decision , Order, and Direction
overruling the Union's Objections 1 and 8 , noting withdrawal of Objec-
tion 2, and directing a hearing on the remaining objections and on 36
challenged ballots
same work that the students performed, and
worked fewer hours per week than the 24 hours
the shift operated. These second-shift, part-time
employees voted challenged ballots pursuant to the
provision of the stipulated election agreement that
part-time employees might vote subject to chal-
lenge.
The judge overruled the Union's challenge to
the ballots of the disputed second-shift employees
and recommended that their ballots be opened and
counted. He relied on the community of interest
they shared with other employees included in the
bargaining unit and the fact that they were not ex-
cluded by the Stipulated Election Agreement. We
disagree that community of interest is the appropri-
ate test for determining the eligibility of the second
shift employees, and we disagree with the judge's
conclusion that they are eligible to vote.
The facts show that second-shift employees have
not been included in the established unit. While the
nine challenged employees are not students, they
work the schedule of hours and the number of
hours set forth in the contract definition of "stu-
dent employees" who were excluded from the con-
tract unit. By excluding student employees, the
contract excluded all second-shift, part-time em-
ployees; and the nine challenged employees have
never been included, in fact, in the unit for which
the Union was recognized as bargaining representa-
tive.
Because an employer's petition for an election
must be predicated on a union's claim to be a Sec-
tion 9(a) representative, the voting unit is generally
the unit claimed by the union to be appropriate.2
When, as here, the union is the incumbent, the
voting unit is coextensive with the recognized unit,
i.e., the unit for which the union claims to be the
continuing exclusive representative. As the recog-
nized unit in this case has not included the disputed
second-shift employees, we sustain the challenges
to their ballots.3
2 This requirement is inherent in Sec 9(c)(1)(B) of the Act, which per-
mits an employer to petition for an election to test a union's claim to be
the Sec 9(a) bargaining representative Sec 102 61(b) of the Rules and
Regulations, which implements Sec 9(c)(1)(B), requires an employer's pe-
tition to contain a brief statement that a union has presented to the em-
ployer "a claim to be recognized as the exclusive representative of all
employees in the unit claimed to be appropriate" See also, e g , Sonic
Knitting Industries, 228 NLRB 1319, 1320 (1977), and Westinghouse Elec-
tric Corp, 129 NLRB 846, 847 (1960)
The limited exception to this requirement is when the claimed unit is
contrary to the purposes of the Act, such as a unit including supervisors
No such exception is present in this case
3 The disputed second-shift employees are Czerepski, Durante, Hur-
kacz, Jakubaczyk, Kazio, Kowalewski, Prosa, Romaneck, and
Zmitrowicz Hurkacz' name was inadvertently omitted from the judge's
summary of recommendations
294 NLRB No. 16
K VAN BOURGONDIEN & SONS
2. The Board adopts the Regional Director's rec-
ommendation in his supplemental report on objec-
tions and denies the Union's motion for reconsider-
ation of Objection 1.
Objection 1 alleged that the Employer had given
an overall wage increase in February 1987 and
"other increases." In its original decision in this
case the Board overruled objection 1, adopting the
Regional Director's recommendation that the over-
all increase was not objectionable in the circum-
stances shown, and that the evidence did not sup-
port a finding that other wage increases were
given.
In its motion to reconsider, the Union contends
that the Employer also gave an overall wage in-
crease in September 1987 and that the Union did
not know of that increase when Objection 1 was
originally investigated. We agree with the Regional
Director that the Union has not shown that evi-
dence of a September 1987 overall wage increase
was newly discovered or previously unavailable.
As the Regional Director pointed out, at the time
of the original investigation of objections in De-
cember 1987 the Union had information that one
employee had increases greater than the February
1987 increase, and this was sufficient to put the
Union on notice of possible increases in addition to
the one of February 1987. Although the evidence
the Union urges in its motion may be related to the
original Objection 1, it was not timely presented.4
3. In adopting the judge's recommendation to
overrule Objection 3, which concerned the retriev-
al of a challenged ballot from the ballot box so that
it could be placed in a challenged ballot envelope
and the sealed envelope then placed in the ballot
box, we emphasize the following particular circum-
stances. Although the challenged voter initially put
her marked ballot in the ballot box without using
the challenged ballot envelope, the judge found
that the Board agent had been able to retrieve the
challenged voter's ballot because it was on top of
the pile, just under the opening. Further, the judge
found that the voter was able to identify the ballot
as hers because of a fold on a corner she had made.
Finally, the judge found that the vote on the ballot
had been revealed to no one other than the chal-
lenged voter herself. We decline to adopt the per
se rule regarding ballot retrieval embraced by our
dissenting colleague and conclude instead, on the
basis of these factual findings-which are not chal-
lenged-that the balloting process was not compro-
mised. Consequently we conclude that the Board
4 See Board's Rules and Regulations , Sec 102 69(a) See also White
Plains Lincoln Mercury, 288 NLRB 1133 fn 24 (1988) (discussing the
Board 's policy of discouraging piecemeal submission of evidence) and
Burns Security Services, 256 NLRB 959 (1981)
269
agent's conduct was not prejudicial to the interests
of either party to the election or to the employees
who exercised the right to vote, 'and therefore
adopt the recommendation to overrule Objection 3.
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 29 shall, pursuant to the Board's Rules and
Regulations, and within 14 days of the date of this
decision, open and count the ballots of the follow-
ing individuals, and thereafter issue and serve on
the parties a revised tally of ballots and the appro-
priate certification:
Sheryl Bettinger Betty Matulchi
Beatrice Flaherty Gaetano Parisi
Ann Busaca Mary Ellen MacKenzie
Darryl Grey Kathy Russo
Vincenzo Furci Lorraine Tramontana
Ruth Schilling Lillian Kaplan
Fae Ferrante Penny Nelson
Vincent Weiss Margaret Wellbrook
The ballots of the following individuals shall
remain unopened and uncounted:
Michael Beltz
Jesse D'Bella
James Strickland
Carrie Lagendyk
Veronica Reilly
Agnes Stroh
Andrew Hill
Bogdan Kazio
Maria Prosa
Maryla Hurkacz
Diane Desser
Antonio Destetano
Pat Fitzpatrick
Mellis Foisset
Miron Czerepski
Vincenza Durante
Stanislaw Jakubczyk
Edward Kowalewski
Feliks Romaneck
Edmund Zmitrowicz
ORDER
IT IS FURTHER ORDERED that this matter is re-
manded to the Regional Director for Region 29 for
further processing consistent with this Supplemen-
tal Decision, Direction, and Order.
MEMBER JOHANSEN, dissenting.
This election should not be allowed to stand. A
challenged voter, disregarding the instruction of
the Board agent, deposited her marked ballot di-
rectly into the ballot box. The Board agent held up
the voting and proceeded to "fish out" a ballot.
The challenged employee then asserted that it was,
in fact, her ballot.
The Union objected to this unsettling incident
and now excepts to the administrative law judge's
finding that it was unobjectionable. I agree with
the Union.
This is conduct that the Board should not toler-
ate. Without any regard to whether or not the
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board agent, or we, should depend on the veracity
and (even more importantly) the accuracy of the
voter in identifying the ballot, the spectacle of a
Board agent fishing in the ballot box for a ballot
requires the election be set aside.'
' Jakel, Inc, 293 NLRB 615 (1989)
Elias Feuer, Esq., for the General Counsel.
James J. Dean, Esq. and James E. McGrath III, Esq.
(Putney, Twombley, Hall & Hirson), for the Employer.
Jon Quint, Esq. and Sidney Levy, Esq. (Markewich, Frie-
dron & Markewich P.C.), for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge This
case was heard by me in March 1987 in New York, New
York.
The Employer, on 24 December 1986 filed this peti-
tion seeking to decertify the Union which had been vol-
untarily recognized on 27 February 1985
A Stipulated Election Agreement was executed by the
parties and approved by the Regional Director for
Region 29 of the National Labor Relations Board on 24
November 1987. An election by secret ballot was con-
ducted on 18 December 1987, in the following unit:
All year-round and seasonal employees, production
packaging, warehouse and maintenance employees,
including truck drivers , and assistant managers em-
ployed by the Employer at its West Babylon loca-
tion, but excluding all department managers, office
clerical employees, student employees, relatives of
management , guards and supervisors as defined in
the Act.'
The tally of ballots served on the parties following the
election showed the following results:
Approximate number of eligible voters-125
Number of Void ballots-30
Number of Votes cast for labor organization-42
Number of Votes cast against participating labor
organization-55
Number of valid votes counted-97
Challenged ballots-36
Valid votes counted plus challenged ballots-133
On 28 December 1987, Local 810 filed timely objec-
tions to conduct affecting the results of the election,
copies of which were served on the Employer-Petitioner.
Subsequently, on 8 February 1988 the Regional Director
issued a report on challenges and objections and notice
of hearing. In that report he overruled Objections 1 and
8. (The Union had previously withdrawn its Objection
' The parties agreed, as part of the Stipulated Election Agreement, that
part-time seasonal employees should vote subject to challenge
2.) Therefore, a hearing was ordered for the following
objections which read:
3. During the conduct of the election, an unenve-
loped challenged ballot was placed into the ballot
box and thereafter removed by the Board Agent
conducting the election. This act destroyed the ap-
pearance of an impartial secret ballot election.
4. During the conduct of the election, non-eng-
lish speaking voters received what appeared to be
translations of the Board Agent's instruction from
other voters in the voter's native language when
neither the observer nor Board Agent were in a po-
sition to understand or monitor such translation.
This conduct appears to allow electioneering or
allows for improper instruction.
5. On December 18, 1987, the Employer visited
homes of the employees and drove them to the poll-
ing areas.
6. On or about February, 1987, the Employer,
acting through John Van Bourgondien threatened
to move the plant if the Union was successful at an
election.
7. On or about December, 1987, the Labor Board
sent notices of election to individual Bargaining
Unit Members without prior agreement or notice to
the parties.
Thirty-six challenged ballots were cast in the election.
Fifteen voters were challenged by the Board because
their names did not appear on the voter eligibility list.
The Union contends that these 15 voters were eligible to
vote because they were participants in an ongoing eco-
nomic strike which began on 27 February 1987. The Em-
ployer contends that these 15 employees are ineligible to
vote either because they did not participate in the strike
or because they abandoned the strike and found "regular,
substantially equivalent, employment elsewhere" prior to
the date of the election. The names of these 15 voters
are.
Ann Busaca Penny Nelson
Diane Desser Gaetano Parisi
Antonio Distefano Kathy Russo
Fae Ferrante Ruth Schilling
Pat Fitzpatrick Lorraine Tramontana
Mellis Foisset Vincent Weiss
Lillian Kaplan Margaret Wellbrock
Betty Matulchi
The Union challenged nine voters who were part-time
employees. It contends that these part-time employees
were excluded by the parties from the contractual bar-
gaining unit and therefore should not be eligible to vote.
They are:
Miron Czerepski Edward Kowalewski
Vincenza Durante Maria Prosa
Maryla Hurkacz Feliks Romanek
Stanislaw Jakubczyk Edmund Zmitrowicz
Bogdan Kazio
K VAN BOURGONDIEN & SONS
The votes of Michael Belz, Jesse D'Bella, and James
Strickland were challenged by the Union on the grounds
that they were students and that their exclusion was stip-
ulated in the election agreement.
Sheryl Bettinger, Beatrice Flaherty, and Mary Ellen
MacKenzie, all of whom have the title of assistant man-
ager, were challenged by the Union. It contends that al-
though assistant managers were specifically included as
voters in the election agreement, they nevertheless
should not vote because they are supervisors as defined
in Section 2(11) of the Act.
Three voters were challenged because they allegedly
were no longer employed by the Employer on the date
of the election. The Union challenged Darryl Gray and
Vincenzo Furci and the Employer challenged Andrew
Hill.
The Union challenged the vote of Carrie Lagendyk,
alleging that she is a relative of one of the Employer's
owners. The Employer for its part challenged the votes
of Veronica Reilly and Agnes Stroh on grounds that
they are relatives of supervisors.
Based on the record as a whole, including my observa-
tion of the demeanor of the witnesses and after consider-
ing the argument of counsel, I make the following
FINDINGS AND CONCLUSIONS
A. The Objections
1. Objection 3
The election was held on 18 December 1987 in two
sessions; one in the morning at a public library and the
other in the afternoon at the Company. Each side had
two observers and there was one Board agent responsi-
ble for conducting the election.
In the afternoon session after most of the people had
voted, Lorraine Tramontana appeared and was chal-
lenged by the Board agent because her name did not
appear on the voter eligibility list 2 (As discussed below
the Company took the position that, although she was an
economic striker, she had gotten employment elsewhere
and had abandoned the strike.) The Board agent gave
her the standard instructions to mark her ballot in the
voting booth, to fold it up, and to return it to him so that
the ballot could be put into a separate challenged ballot
envelope before being placed in the ballot box.3 Tramon-
tana, however, disregarded these instructions and instead
placed her ballot directly into the ballot box. When this
was discovered, the Board agent, after some consterna-
tion, held up the voting and decided to attempt to fish
out Tramontana's ballot from the box. This he managed
to do because her ballot was at the top of the pile, just
under the opening By using a pen, he was able to put it
2 In this case the Excelsior list was used as the eligibility list This was
prepared by the Employer and contained the names and addresses of
those people the Employer believed were eligible to vote in accordance
with the election agreement
9 When the eligibility of voters are challenged their votes are placed in
challenge envelopes so that a later determination can be made, if needed,
whether their votes should be counted If they are found to be ineligible,
the envelopes are not opened If they are found to be eligible, the enve-
lopes are opened and the votes counted Care is taken, to the extent pos-
sible, to keep the ballots secret
271
under the fold (the ballot had been folded in half), and
bring it out through the slot. He showed the ballot to
Tramontana and asked her if this was her ballot. She re-
sponded affirmatively, stating that she recognized it be-
cause she had folded a corner when handling it. She also
confirmed that this was the way she had voted, and pro-
ceeded to place the ballot in the challenge envelope
which was then sealed and deposited into the ballot box.
At no time was the vote on the ballot shown to or re-
vealed to anyone other than Tramontana
In Polymers, Inc., 174 NLRB 282 (1969), enfd. 414
F.2d 999 (2d Cir. 1969), cert. denied 396 U.S 1010
(1970), the Board stated-
Election procedures prescribed by the General
Counsel or a Regional Director are obviously in-
tended to indicate to field personnel those safe-
guards of accuracy and security thought to be opti-
mal in typical election situations These desired
practices may not always be met to the letter, some-
times through neglect, sometimes because of the ex-
igencies of circumstance. The question which the
Board must decide in each case in which there is a
challenge to conduct of the election is whether the
manner in which the election was conducted raises
a reasonable doubt as to the fairness and validity of
the election.
In OK Van & Storage Co., 122 NLRB 795, 797 ( 1958),
the Board overruled an objection where, after almost all
eligible voters had voted, the Board agent reached into
the ballot bag and pulled out a ballot to show the ob-
servers how a ballot should be marked to be valid. The
Board stated:
Considering that it was the Board agent who han-
dled the ballot, the purpose of its removal, and the
absence of any evidence to show that the secrecy of
the ballot was thus impaired, we find, in agreement
with the Regional Director, that this objection is
also without merit, and is overruled.
In the present case, I think the Board agent's reaction
to an unusual situation was reasonable. He was faced
with the choice of either letting the challenged voter
evade his instruction by placing her ballot directly into
the ballot box or with trying to retrieve it as best he
could. The fact is that he did retrieve Tramontana's
ballot without divulging its contents to any other person
present (including himself), and placed it into the chal-
lenge envelope where it belonged. I therefore recom-
mend that this objection be overruled.
2. Objection 4
During the course of the election , two voters came to
the polls and , because they did not understand English,
did not understand the Board agent 's instructions vis-a-
vis the voting. They did appear , however, with persons
who could translate and the Board agent repeated his in-
structions to the translater who spoke to the voter. In
one instance the voter was an Italian woman who came
with her daughter (also an employee), who did the trans-
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lating . In the other case, the voter spoke Polish and
there was someone there who was able to translate. Each
voter cast a ballot without incident.
There were approximately 125 eligible voters accord-
ing to the tally, of ballots. Of these, it appears that a
number spoke Italian or Polish. This is evidenced by the
fact that the notice of election was printed in English,
Polish, and Italian . Nonetheless, of the total number who
voted, only two persons required the services of a trans-
later and there is no evidence that either party, prior to
the election, notified the Board that an official translater
would be required or even desirable at the polls. In such
circumstances, I can see nothing improper in the fact
that two individuals received their voting instructions
through translations by other voters.4
I therefore recommend that this objection be over-
ruled.
3. Objection 5
The Union alleges that during the election the Em-
ployer drove certain employees to the polling area. In
this regard, the evidence shows that the Company did
drive two employees to the Company during the elec-
tion, these being Mary Hartman and Isabella Broderick.
The evidence shows that the Company has customarily
driven both of these persons to work because Hartman
requires a wheelchair and Broderick has no car or other
means of transportation The evidence also shows that on
one other occasion during the election an employee was
driven from the plant to her home and back because she
could not produce identification when asked to do so by
the union observer.
I recommend that this objection be overruled.
4. Objection 6
The Union contends that in February 1987 the Em-
ployer, by John Van Bourgondien, threatened to move
the plant if the Union won the election
The evidence shows that the Union scheduled a strike
for 27 February 1987,. In anticipation of this strike the
Employer held three meetings with separate groups of its
employees on 26 February. Joseph Van Bourgondien,
one of the owners, spoke to a group of about 35 women
and he is alleged to have threatened to move the Compa-
ny to Pennsylvania.
A close reading of the testimony of the employees
who testified to the meeting tends to corroborate the
credible testimony of Van Bourgondien to the effect that
he told the employees that if there was a strike, the
Company would continue to operate at its present loca-
tion; that he hoped they would come to work notwith-
standing a strike; and that the Company had its roots in
West Babylon and did not intend to move despite the
fact that some years ago it had been offered various tax
and other benefits to move.
4 See Regency Hyatt House, 180 NLRB 489, 498 (1969) Cf Kerr Glass
Mfg Corp, 168 NLRB 802, 803 ( 1967) In the latter case , the Board
upheld an the validity of election in which only English language ballots
were used in a situation where there were a significant number of non-
English-speaking voters, but where the notices had been translated into
the relevant languages
While it is conceivable that a few employees may have
misconstrued and read into Van Bourgondien's remarks a
threat to move, I do not think that this was either said or
intended. I therefore recommend that this objection be
overruled.
5. Objection 7
The Union contends that in December 1987 Region 29
sent notices of election to the prospective voters "with-
out prior agreement or notice to the parties." Apparently
what the Union really objects to, however, is that a siza-
ble number of people did not receive such notices be-
cause their names and addresses were not furnished to
the Region by the Employer by way of the Excelsior list.
The Board's Regional Office decided to mail out
copies of the notices of election to the prospective voters
because there were a significant number of employees
who would not see the notice at the plant because they
were on strike. These notices were mailed to the people
set forth on the Excelsior list furnished by the Employer
prior to the election.
When the Union received a copy of the Excelsior list,
its attorney called the Board agent and gave him the
names of a number of people who the Union believed
were eligible voters. (Gathered from the Union's mem-
bership records.) The Board agent then communicated
with the Employer's attorney who sent a letter on 7 De-
cember 1987 indicating the reasons that 27 employees
were no longer employed and therefore not on the list.
(Also listed was each employee's last week of work.)
The Union contends that a total of about 40 people did
not receive from the Board's Regional Office the notices
of election. One group of 15 comprises the people it al-
leges were economic strikers and they are listed above.
Another group consists of 25 persons who are:
Lisa Biondo Susan Loudon
Duane Bowal Janet Masse
Catherine Bursztin Anne Mullen
Ramona Caba Ida Parenti
Clare Childs Betty Pomerenk
Linda Cirillo Wayne Schilling
Shirley Danzker Betty Schoepp
Phil Dilieto Eleanor Teague
Katheryn Dorage Alice Tooker
Joan Erickson Alan Volimer
Kerry Ferrara Leonor Walters
Diane Kromout Joyce Walz
Lidia Kroushinsky
As to the second group (all except for Phil Dilieto
who apparently is on the Excelsior list as Mae Dilieto),
the Employer asserts that all left the Company's employ
either voluntarily or involuntarily before the eligibility
date set forth in the election agreement (i.e., 18 Novem-
ber 1987). The evidence does tend to establish that these
people were not eligible to vote either because they had
quit their employment or had been discharged prior to
K. VAN BOURGONDIEN & SONS
the eligibility date.5 None of these people came to the
polls to vote.
As to the first group I have concluded below that of
the group of 15, 11 were eligible to vote either because
they were on sick leave and/or were economic strikers.
All the people in this group managed to get to the polls
on time and cast challenged ballots. Therefore their non-
receipt of the election notices with the sample ballots
was not prejudicial.
I note that the Union does not claim that the Employ-
er's conduct in not putting certain names and addresses
on the list constituted objectionable conduct within the
meaning of the rule enunciated in Excelsior Underwear,
156 NLRB 1236 ( 1966). The fact is that in the present
case there were at most 11 potentially eligible voters
who did not receive the notice and sample ballot out of
about 125 . Moreover , the Union here was the incumbent
union and obviously was in contact with those employ-
ees who were supporting the Union by striking . I, there-
fore, recommend that this objection be overruled.
B. The Challenges
1. Michael Belz , Jesse D'Bella, and
James Strickland
These three individuals all work basically on a regular
part-time basis except for summers and vacation periods
when their hours of employment are increased . They are
full-time students , two of whom go to high school and
one to a community college.
The Stipulated Election Agreement specifically ex-
cludes from the voting unit all "student employees." As
the agreement is clearly unambiguous and as the stipula-
tion does not, in my opinion , contravene any express
statutory provision or established Board policy, I con-
clude that the challenges to these votes be sustained and
that their ballots remain unopened . SCM Corp., 270
NLRB 885 , 886 (1984). See also NLRB v. Speedway Pe-
troleum , 768 F . 2d 151, 155-158 (7th Cir . 1985).
2. Carrie Lagendyk , Veronica Reilly, and
Agnes Stroh
All of these individuals are related to company super-
visors but otherwise do the same type of work as other
employees in the bargaining unit . Carrie Lagendyk is the
wife of Andy Lagendyk who is the manager of the Com-
pany's wholesale department . Veronica Reilly and Agnes
Stroh are respectively the sister and mother of Catherine
Tweedy whose title is warehouse manager and is con-
cededly a supervisor.
As the Stipulated Election Agreement expressly ex-
cludes "relatives of management ," I conclude that these
challenges be sustained and that these three ballots
remain unopened and uncounted.
5 I note that the Union subpoenaed the Employer 's payroll records and
these were produced for the years 1986 and 1987 These records were
reviewed by the Union at the hearing and were referred to at various
times by the Employer 's main witness while testifying Clearly, if the
Union had desired to rebut the Employer's contentions regarding this
group of former employees it had the records available to do so
3. Sheryl Bettinger , Beatrice Flaherty, and Mary
Ellen MacKenzie
273
The Stipulated Election Agreement expressly includes
in the voting unit all assistant managers . Notwithstanding
the stipulation , the Union contends that Bettinger, Fla-
herty and MacKenzie , each of whom is an assistant man-
ager, are supervisors within the meaning of Section 2(11)
of the Act. As such , the Union contends that their inclu-
sion in the voting unit , in accordance with the stipula-
tion , would contravene an express statutory provision
Sheryl Bettinger is an assistant manager in the packag-
ing department where the manager is Doris Pagnoni. Be-
atrice Flaherty also is an assistant manager in the same
department except that she works on the evening shift.
Mary Ellen MacKenzie is the assistant manager in the
wholesale department and works under the direction of
Catherine Tweedy.
The evidence shows that the main function of the
three individuals is to distribute work to the employees
in their respective departments . However, the evidence
also indicates that the work distribution is routine and
does not require the exercise of independent judgment.
There was no evidence that any of the three individuals
has the power to hire, fire, promote, or otherwise exer-
cise the powers enumerated in Section 2(11) of the Act
except that Flaherty has made recommendations regard-
ing continued employment for students working on the
second shift . Yet, even in Flaherty's case, it is my opin-
ion that the evidence was insufficient to prove that she
effectively recommended discharges.
In my opinion the evidence presented at the hearing
proved , at most , that these three individuals had the
functions of leadpersons and I do not believe that the
evidence was sufficient to establish that they were super-
visors within the meaning of Section 2(11) of the Act. As
they clearly were included in the voting unit pursuant to
the parties ' stipulation , I recommend that their ballots ' be
opened and counted Browning-Ferris Industries, 275
NLRB 292 ( 1985); Tribune Co., 190 NLRB 398 (1971).
4. Second -shift employees
A group of nine part -time employees who work on the
second shift were challenged by the Union . In this re-
spect , the Union contends that the people who worked
on this shift have historically been excluded from the
bargaining unit and have been students . While not dis-
agreeing with the historical facts, the Employer contends
that although the second shift had been populated by stu-
dents (who are excluded from the collective -bargaining
agreement), the Employer , because the student employ-
ees had excessive tardiness and absenteeism , changed its
policy and hired nonstudents to work on the second
shift. As noted, the Stipulated Election Agreement spe-
cifically provides that the eligibility of these individuals
would be subject to the challenge procedure.
The evidence establishes that the group of nonstudents
hired for the second shift began in the autumn season of
1987 and with the exception of a few (one of whom was
involved in an automobile accident), resumed work in
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
late January for the spring season .6 The work done by
these employees is no different from that done by the
packing employees on the day shift and they are paid es-
sentially the same wage rates (depending on tenure), and
receive the same level of benefits. As the evidence shows
that this group of employees work on a regular part-time
basis, performing the same work under the same condi-
tions, as other unit employees, I conclude that they have
the same community of interest as the employees in the
bargaining unit. Farmers Insurance Group, 143 NLRB
240, 244-245 (1963) Since they were not excluded from
the voting unit by virtue of the Stipulated Election
Agreement, I recommend that their votes be opened and
counted. The voters in question are:
Miron Czerepski Edward Kowalewski
Vincenza Durante Maria Prosa
Maryla Hurkacz Feliks Romanek
Stanislaw Jakubczyk Edmund Zmitrowicz
Bogdan Kazio
5. Andrew Hill and Darryl Grey
The record shows that Andrew Hill 's last day of work
at the Company was 16 November 1987. That is, he left
2 days prior to the payroll eligibility date set forth in
Stipulated Election Agreement which was 18 November
1987. The Company's witness testified without contradic-
tion that Hill was employed in the warehouse, that he
was not laid off, and that he left and has not since re-
turned to work Based on the uncontested testimony, I
conclude that Hill quit his employment prior to the eligi-
bility date and therefore was ineligible to vote Plymouth
Towing Co., 178 NLRB 651 (1969).'
Darryl Grey, who worked in the warehouse began his
employment with the Company on 2 September 1987,.
He had a 3 week hiatus beginning shortly before 18 No-
vember 1987. This was caused by the fact that he violat-
ed parole and spent the time in an involuntary visit to
one of New York's institutions. On 23 December 1987 he
resumed his duties and has been employed ever since.
While Grey's absence from work during a part of the eli-
gibility period was not because he was ill, on vacation,
or temporarily laid off, it is also evident that he had not
quit his employment or been discharged. In these some-
6 The Company basically has two seasons One generally begins in late
January and runs through mid-May , and the other begins in mid-August
and runs through mid-October Most of the Company's employees,
whether on the day or evening shift, are laid off at the end of each
season and are recalled for the next season
7 Par 2 of the Stipulated Election Agreement states
2 ELIGIBLE VOTERS The eligible voters shall be unit employees
employed during the payroll period for eligibility, including employ-
ees who did not work during that period because they were ill, on
vacation, or temporarily laid off, employees engaged in an economic
strike which commenced less than 12 months before the election date
and who retained their status as such during the eligibility period
and their replacements , and employees in the military services of the
United States who appear in person at the polls Ineligible to vote
are employees who have quit or been discharged for cause since the
payroll period for eligibility , employees engaged in a strike who
have been discharged for cause since the commencement thereof and
who have not been rehired or reinstated before the election date, and
employees engaged in an economic strike which commenced more
than 12 months before the election date and who have been perma-
nently replaced
what unusual circumstances, I conclude that Grey
should be considered an eligible voter and I recommend
that his ballot be opened and counted.
6. Vincenzo Furci, Ruth Schilling, Fae Ferrante,
Margaret Wellbrook, Betty Matulchi, and
Gaetano Parisi
In Red Arrow Freight Lines, 278 NLRB 965 (1986), the
Board stated:
The fundamental rule governing the eligibility of
an employee on sick or maternity leave is that he or
she is presumed to continue in such status unless
and until the presumption is rebutted by an affirma-
tive showing that the employee has been discharged
or has resigned.
Furci last worked at the Company in August 1987
when he stopped because of a serious illness. He has not
yet returned. According to John Van Bourgondien,
Furci is on sick leave and would be reinstated to a job
suitable to him when and if he recovers sufficiently to
return work. In this respect Van Bourgondien testified
that the Company has a very liberal practice of keeping
jobs open for employees who are out sick.
Betty Matulchi, who was employed as a packer since
February 1978 last worked for the Company in Novem-
ber 1985. She states that she left on bereavement leave
because her mother died. Shortly thereafter, she was laid
off after the fall season with other employees in her clas-
sification.
According to Matulchi she received a mailgram recall-
ing her to work in February 1986 but told Ann Sconzo
(who among other things is in charge of payroll) that her
doctor told her to rest in anticipation of surgery on her
wrist. Matulchi states that Sconzo asked her to send a
letter explaining the situation, which she did.
Matulchi testified that she had the surgery in April
1986, and after recuperating, she called the Company in
January 1987 to go back to work. She states that in Janu-
ary 1987 Ann Sconzo told her for the first time that her
leave of absence was up and she no longer was em-
ployed by the Company. Thereafter, when the Union
went on strike, Matulchi joined the strike and participat-
ed in the picketing.
Ruth Schilling began working at the Company in
1970. Her last day at work was 26 December 1986. On 9
January 1987, just prior to returning to work, Schilling
had a heart attack. While at the hospital she was visited
by Fred Van Bourgondien (one of the owners), and told
him, "Don't worry I'll be back." During the period of
her recovery, Schilling collected disability benefits,
which ran out in April 1987. When she fully recovered,
the strike had already commenced and she participated
in the picketing and spoke to Van Bourgondien on the
picket line.
Margaret Wellbrook has been employed by the Com-
pany for 23 years. She last worked on 19 December
1986, at which time she told Ann Sconzo that she would
be having an operation. In fact, she did have an oper-
ation on 30 December 1986 and in January 1987 received
disability benefits until sometime in March 1987. In April
K VAN BOURGONDIEN & SONS
1987, she had recovered from the operation and instead
of going back to work joined the strike and participated
in the picketing. In September 1987 she stopped picket-
ing because her husband became sick.
Fae Ferrante began working at the Company in
August 1980 as an order picker in the wholesale depart-
ment . She was temporarily laid off in May 1986. In
August when she received a recall notice she called Ann
Sconzo and said that she could not go back to work yet
because of bone spurs. She told Sconzo she would call
back in a couple of weeks According to Ferrante, she
then developed problems with her knee and when she
went and spoke to Sconzo she was told that Andy would
give her a sit down job. Ferrante states that she said in
effect that there were no sit down jobs in her depart-
ment , whereupon Sconzo said, "if you get better, call us
up and if there is an opening we'll call you back." Ac-
cording to Ferrante, when the strike began, she opted to
join the strike rather than return to work.
Gaetano Parisi is also called Ida Parisi. Three weeks
before the strike she wrote to the Company on 10 Febru-
ary 1987 saying that she was taking a leave of absence in
Florida for a while on her doctor's advice because of an
allergy. The record does not indicate whether she ever
returned to New York, or whether she sought to return
to work or joined the strike. There is also no evidence
that she was discharged or resigned.
Inasmuch as the testimony of John Yan Bourgondien
establishes that the Company has a liberal practice vis-a-
vis employees who are absent because of illness and as
there is no persuasive affirmative evidence that any of
the above-named employees had been discharged or had
resigned, I am persuaded that they were eligible voters.
In reaching this conclusion, I am mindful of evidence
which in Furci' s case, makes it somewhat unlikely that
he will be able to return to work. In the case of Schil-
ling, I note that despite her heart attack she has recov-
ered and has participated in the picketing which has
taken place in full view of the Company and its manage-
ment.
In the cases of Schilling, Ferrante, Wellbrook, and
Matulchi, the evidence establishes that each was not
working on the payroll eligibility date because of illness
and thereafter became economic strikers who are entitled
to vote under the terms of the Stipulated Election
Agreement. In the case of Parisi, although the evidence
concerning her situation is extremely thin, I believe that
the company has not rebutted the presumption that she
was on sick leave and therefore eligible to vote
7. Ann Busaca, Diane Desser, Antonio Destefano,
Pat Fitzpatrick, Mellis Foisset, Lillian Kaplan,
Penny Nelson, Kathy Russo, Lorraine Tramontana,
and Vincent Weiss
The Union contends that all of these persons were eli-
gible to vote because they were economic strikers. The
strike commenced on 27 February 1987 and has contin-
ued to date.
John Van Bourgondien testified that Diane Desser last
worked during the week ending 15 October 1986 and has
never returned to work He testified that Antonio Deste-
fano was laid off during the week ending 11 November
275
1986 and never returned He testified that Pat Fitzpatrick
last worked during the week ending 14 May 1986 and
did not respond to a recall notice for that autumn. Ac-
cording to Van Bourgondien, Mellis Foisset quit during
the week ending 31 January 1987.
With respect to the four people named above, the
Union did not show that they engaged in the strike or
otherwise were eligible to vote by reason of illness etc., I
therefore recommend that their ballots remain unopened
and uncounted.
The evidence shows that Ann Busaca and Kathy
Russo worked at the Company until the day before the
strike and participated in the strike. The Employer
having produced no evidence showing why these two in-
dividuals, as economic strikers, would not be eligible to
vote, I recommend that their ballots be opened and
counted. The evidence also tends to show that Vincent
Weiss was a striker albeit he had just returned to work
the day before. Nevertheless, as the Employer advances
no basis for finding him to be an ineligible voter, I rec-
ommend that his ballot be opened and counted.
Lorraine Tramoatana, Lillian Kaplan, and Penny
Nelson8 all were economic strikers, who after the strike
began, got full-time jobs elsewhere In each instance they
got jobs that paid more money and had better fringe ben-
efits. Nevertheless, they testified that they would return
to work at the Company if pay and benefits equaled
those of their other jobs. They also testified that they did
not tell either their new employers or the Employer here
that they considered their new jobs to be permanent. In
the case of Penny Nelson, there was hearsay testimony
that she told her supervisor at the Company that she did
not intend to go back to work.
The Board in Pacific Tile & Porcelain Co., 137 NLRB
1358 (1962), held that economic strikers are presumed to
be eligible voters assuming the election is held within 12
months of the commencement of the strike. To rebut the
presumption the Board held that the party challenging
the voter's eligibility must affirmatively show by objec-
tive evidence that an economic striker has abandoned an
interest in his or her job. See also Q-T Tool Co., 199
NLRB 500 (1972). Moreover, the fact that a striker may
have taken another job at higher earnings, by itself is in-
sufficient to rebut the presumption that the striker is eli-
gible to vote. Q-T Tool Co., supra; Akron Engraving Co.,
170 NLRB 232 (1968); Pacific Tile & Porcelain Co., supra
In view of the testimony of Kaplan and Tramontana
and the stipulation as to the proposed testimony of
Penny Nelson to the effect that they would either return
to work or consider returning to work at the Employer
if their wages and benefits at such time equaled their cur-
rent employers, I do not believe that the Employer has
rebutted the presumption that they were eligible voters I
shall therefore recommend that their ballots be opened
and counted.
8 It was stipulated that Penny Nelson, if called to testify, would give
essentially the same testimony as Tramontana and Kaplan
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Summary of Recommendations
On the foregoing, I make the following recommenda-
tions:9
1. That all the Union's objections be overruled.
2. That the ballots of the, following individuals be
opened and counted.
Fae Ferrante
Miron Czerepski
Vincenza Durante
Stanislaw Jakubczyk
Bogdan Kazio
Edward Kowalewski
Maria Prosa
Feliks Romaneck
Edmund Zmitrowicz
Darryl Grey
Maryla Hurcacz
Mary Ellen MacKenzie
Margaret Wellbrook
Betty Matulchi
Gaetano Parisi
Ann Busaca
Kathy Russo
Lorraine Tramontana
Lillian Kaplan
Penny Nelson
Vincent Weiss
Sheryl Bettinger Vincenzo Furci
Beatrice Flaherty Ruth Schilling
9 Pursuant to Sec 102 69 of the Board's Rules and Regulations , and the
Order directing hearing any party may , within fourteen ( 14) days from
the date of issuance of this Report, or within such further period as the
Board may allow, file with the Board in Washington , D C, an original
and eight copies of Exceptions to this Report with supporting brief, if
desired Immediately upon the filing of such Exceptions , the party filing
the same shall serve a copy thereof together with a copy of any brief
filed upon the other parties A statement of service shall be made to the
Board simultaneously with the filing of Exceptions If no Exceptions are
filed hereto the Board , upon the expiration of the period for filing such
Exceptions , may adopt the recommendations of the Hearing Officer
forthwith upon the record or may invoke any other disposition of the
case
3. That the ballots of the following individuals remain
unopened and uncounted:
Michael Beltz Andrew Hill
Jesse D'Bella Diane Desser
James Strickland Antonio Destefano
Carrie Lagendyk Pat Fitzpatrick
Veronica Reilly Mellis Foisset
Agnes Stroh