Knapp-Sherrill Co.

National Labor Relations Board - Board Decisions

Jun 18, 1968

171 N.L.R.B. 1547 (N.L.R.B. 1968)

KNAPP-SHERRILL COMPANY 1547
Knapp-Sherrill Company and Amalga ated Meat-
cutters and Butcher Workmen of North America,
AFL-CIO, and Its Local 173 , Petitioner. Case
23-RC-2867
June 18, 1968
DECISION AND DIRECTION
AND
ORDER AND DIRECTION OF THIRD
ELECTION'
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
Pursuant to a stipulation for certification upon
consent election executed by the parties on January
26, 1967, an election by secret ballot was con-
ducted in the above-entitled proceeding on April
14, 1967, under the direction and supervision of
the Regional Director for Region 23 (Houston,
Texas). Upon the conclusion of the election , a tally
of ballots was furnished the parties , in accordance
with National Labor Relations Board Rules and
Regulations , Series 8 , as amended.
The tally of ballots served upon the parties at the
conclusion of that election showed that there were
approximately 139 eligible voters and that 134 cast
valid ballots of which 62 were for and 72 were
against the Petitioner. There were 11 challenged
ballots and no void ballots. The challenged ballots
were sufficient in number to affect the results of the
election.
Thereafter, on April 20, 1967, the Petitioner
filed timely objections to the conduct of the elec-
tion. On May 9, 1967, the parties entered into a
stipulation and agreement providing for a second
election to be conducted under the same terms as
in the first election.
On May 19 , 1967, pursuant to the agreement of
the parties and Section 102.69 of the Board 's Rules
and Regulations , a second election by secret ballot
was conducted among the employees in the agreed-
upon unit . Upon the conclusion of the counting of
the ballots, the parties were served with a tally of
ballots showing that of approximately 122 eligible
voters, 122 cast valid ballots, of which 63 were for
and 59 were against the Petitioner . There were
seven challenged ballots, and two ballots were
declared void by the Board agent conducting the
' The Order and Direction of Third Election are conditional, as set forth
below.
election. The challenged ballots were sufficient in
number to affect the results of the election.
On May 29, 1967, the Employer filed timely ob-
jections to the conduct of election and conduct af-
fecting results of election. In accordance with the
Board's Rules and Regulations , the Regional
Director for Region 23 conducted an investigation
and on July 25, 1967, issued and served upon the
parties his order directing hearing and notice of
hearing in which he ordered that a hearing be held
before a duly designated officer for the purpose of
taking evidence on the challenged ballots and on
the issues raised by all of the Employer's objec-
tions.
The hearing was held on September 7 and 8 and
October 19, 1967, at Edinburg, Texas, before Hear-
ing Officer Terry S. Bickerton, duly designated for
the purpose, at which time the Employer, the Peti-
tioner , and counsel for the Regional Director ap-
peared and participated therein. All parties were af-
forded full opportunity to be heard , to examine and
cross-examine witnesses , to introduce evidence
bearing upon the issues , and to present arguments
and briefs to the Hearing Officer. On December 11,
1967, the Hearing Officer issued his report and
recommendation on challenges and objections in
which he recommended, in accordance with the
parties' stipulation , that challenges to the ballots of
four employees be overruled and their ballots be
opened and counted and that challenges to the bal-
lots of three employees be sustained. He further
recommended that all of the Employer's objections
be overruled, except that if the revised tally of the
ballots reflects that the Petitioner has won the elec-
tion by a majority of one vote, then the election be
set aside and a new election directed; he also
recommended that one of the ballots declared void
be counted as a "No" vote. Both parties filed time-
ly exceptions and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
171 NLRB No. 171
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. We find, in accordance with the stipulation of
the parties, that the following employees of the Em-
ployer constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act: All production and main-
tenance employees, including warehousemen and
truckdrivers, employed at the Employer's location
at 331 South 12th Street, Donna, Texas, excluding
all office clerical employees, field men, watchmen,
guards, and supervisors, as defined in the Act.
5. The Hearing Officer recommended that Em-
ployer's Objection 1 be overruled. We do not
agree.2
In Objection 1, the Employer alleges that im-
mediately before the election, the Union, through
its representatives and agents, threatened em-
ployees that if they did not support the Union, and
the Union won the election, they would lose their
jobs or have difficulty in their jobs with the Em-
ployer.
In testimony credited by the Hearing Officer, em-
ployee Manuel Guerra stated that a union represen-
tative told him that "if the union would win the
election, that I could keep my job. But if not, that
maybe I wouldn't have that job." Employee
Faustina Rivera testified that a union representative
told her that "if I would help him-if I helped him
with my vote and the union won, that I would have
my job assured. If not, then later, I would probably
have trouble finding a job"; and further "that [the
union representative] would give protection to the
Union members and then if there was anything left,
then we would get it." Union Representative Joe
Barrera, at one point in his testimony, admits telling
Rivera "that the union's protections and benefits
went first to union members, and if there was
anything left over, then non-members got the
benefits."
The Hearing Officer finds that the above state-
ments are "far too vague and ambiguous to be con-
strued as threats of loss of job ... [and] that the
conversations in question were conducted in a calm
and cordial manner."
We disagree. There is nothing vague or am-
biguous about these statements. They make it clear
that the Union was proposing to represent members
differently from other employees. Such statements
clearly warrant setting aside the election should the
revised tally, which we direct below, show that the
Union has prevailed.
In Objection 7(a), the Employer contends that
the Board agent conducting the election erred in al-
lowing a blank ballot to be given to an eligible
voter, and that this error resulted in depriving that
voter of the right to participate fully in the election.
Alternatively, the Employer contends that the
Board agent conducting the election erred in
declaring this blank ballot void.
The ballot in question is a blank piece of paper,
the same size , color, and type used for the ballots in
this election, on which the word "No" is written.
Employee Maria Casares testified that she received
this blank ballot, wrote "No" on it, and placed it in
the ballot box.
The Hearing Officer found that the Board agent
properly declared this to be a void ballot since
there was no other writing or printing on the ballot,
and an examination of the ballot itself did not dis-
close the voter's intent . In agreeing that this is a
void ballot we rely solely on the fact that a blank
sheet of paper is not an official ballot.
The Petitioner excepts to the Hearing Officer's
ruling on Employer's Objection 7(b). The Em-
ployer contended that the Board agent conducting
the election erred in declaring void a ballot con-
taining an "X" in the "No" box and the words "Pu-
to El Union" in the "Yes" box. The official in-
terpreter at the hearing testified that this Spanish
phrase neither literally nor idiomatically is compli-
mentary to the Union. The ballot therefore doubly
reflects the intent of the voter and the markings
contained in the "Yes" box do not inherently dis-
close the identity of the voter in this election. The
Hearing Officer found that the Board agent con-
ducting the election erred in declaring this ballot
void, and held the ballot to be a "No" vote. We
agree.
In Objection 7(c) the Employer alternatively
contends that in the event the ballots described
above be declared void, then an additional ballot
counted as valid should also be declared void. This
ballot has an "X" above the word "YES" within
the larger Yes portion of the ballot although not in
the designated square. The Hearing Officer found
the Board agent properly held this to be a "Yes"
vote. We agree.
In accordance with the parties' stipulation the
Hearing Officer recommended that the challenges
to the ballots of the following named employees be
overruled and that their ballots be opened and
2 In view of our disposition of this issue , we find it unnecessary to pass
upon the other objections not considered herein
KNAPP-SHERRILL COMPANY 1549
counted: Manuel A. Loera, Alicia Rodriguez, Her-
linda Medrano, and Santos Garza; and that the
challenges as to Antonio Casares, Camilo
Cardenas, and Jose Hernandez be sustained. These
recommendations are hereby adopted.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain representatives for the purposes of
collective bargaining among the employees of
Knapp-Sherrill Company at its location at 331
South 12th Street, Donna, Texas, in the unit set
forth in the stipulation for certification upon con-
sent election, the Regional Director for Region 23
shall, pursuant to the Board 's Rules and Regula-
tions , within 10 days from the date of this
Direction, open and count the ballots of Manuel A.
Loera, Alicia Rodriguez, Herlinda Medrano, and
Santos Garza and count as valid the ballot referred
to in Objection 7(b) and, thereafter, prepare and
cause to be served on the parties a revised tally of
ballots, including therein the count of said ballots.
If, according to the revised tally of the ballots, the
Petitioner has not received a majority of the valid
ballots cast in the election, the Regional Director is
directed to certify the results of the election. If,
however, according to the revised tally of ballots,
the Petitioner has received a majority of the valid
ballots cast in the election, the following Order and
Direction of Third Election shall be applicable.
ORDER
It is hereby ordered that the election conducted
herein on May 19, 1967, among the employees of
Knapp-Sherrill Company at its Donna, Texas,
establishment, be, and it hereby is, set aside.
[Direction of Third Election3 omitted from publi-
cation. ]
8 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 23 within 7 days after the date of issuance of the Notice of Third
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 cir-
cumstances . 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.