N. B. Leibman & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1955

112 N.L.R.B. 88 (N.L.R.B. 1955)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it gave consideration to the problems incident thereto, including that
of filing and service of objections. We believe that Rule 102.61 is
salutary and not unreasonable in its requirements. We also believe
that it is essential to achieve certainty in procedural matters that
parties before the Board be held to strict adherence to the Board's
Rules and Regulations.' In our view placing copies of the objections
in the mail addressed to the parties, on January 21, 1955, 2 days after
the objections were filed with the Regional Director, was not service
made "immediately" within the meaning of Section 102.61. As time-
ly service is a fundamental and controlling consideration, we find it
unnecessary to pass upon the merits of the other contention of the
Petitioner. We shall, therefore, overrule the exceptions to the Region-
al Director's report and adopt his recommendation to dismiss the
objections to the election.4
As none of the unions received a majority of the valid ballots cast,
we shall certify the results of the election.
[The Board certified that a majority of valid ballots was not cast
for International Association of Machinists, AFL, nor for Interna-
tional Union of Electrical Radio and Machine Workers of America,
CIO, nor for Local 613, International Brotherhood of Electrical
Workers, AFL, and that none of the said unions is the exclusive
representative of the employees at the Employer's Athens, Georgia,
plant in the appropriate unit.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Certification of Results of Election.
8 Daystrom Instrument Division, Daystrom Incorporated, 101 NLRB 1784; Owens-IlbB-
nois Glass Company, 100 NLRB 1024
4 See Dunn Motor Company, 100 NLRB 822.
N. B. Liebman & Company, Inc. and Retail Clerks International
Association , AFL, Petitioner . Case No. 4-RC-0464. April 12,
1955
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election 1 issued on No-
vember 10, 1954, in the above proceeding, an election by secret ballot
was conducted on December 9, 1954, under the direction and super-
vision of the Regional Director for the Fourth Region, among the
employees in the unit found appropriate by the Board. At the con-
clusion of the election, the parties were furnished with a tally of
ballots. The tally showed that of approximately 23 eligible or alleg-
i Not reported in printed volumes of Board Decisions and Orders.
112 NLRB No. 14.
N. B. LIEBMAN & COMPANY, INC. 89
,edly eligible voters, 21 ballots were cast. Of these, 10 ballots were
for the Petitioner, 5 ballots were against the Petitioner, and 6 ballots
were challenged. The challenges were sufficient in number to affect
the results of the election.
On December 16, 1954, the Employer filed timely objections to con-
duct affecting the results of the election. After investigation, the
Regional Director on February 16, 1955, issued his report and recom-
mendations on objections and challenges. In this report, the Regional
Director found the objections to be without merit and recommended
that they be overruled. As to the six challenged ballots, the Regional
Director recommended that the challenges be sustained and that the
Petitioner be certified.. On February 28, 1955, the Employer filed
timely exceptions to the Regional Director's report.
In its first objection, there being three in number, the Employer
charged that by threats of penalty and reprisal, the Petitioner so
restrained, coerced, and intimidated employees that the election was
not an expression of their free choice of bargaining representative.
Specifically, the Employer alleged that Ralph Schuster, an agent of
the Petitioner and an employee of the Employer, represented to other
employees that, if the Union won the election, initiation fees would
be larger; that no initiation fee would be charged if the employees
joined before the election; that, unless employees joined before the
election, they would, if the Union won, lose their jobs; and further-
more that, if the Union won the election, all employees would have
to become members of the Union.
In support of its claim that the Petitioner was responsible for the
acts of Schuster, the Employer contends that Schuster's authority
to act on behalf of the Union was established by the following conduct :
The Petitioner's organizer indicated that Schuster would be the
future president of the local,' the employees understood Schuster
was to be the steward for the unit, and Schuster was the most active
union adherent and principal contact between the employees and the
Petitioner. After the investigation, the Regional Director reported
that no evidence had been offered to support such allegations, and that
his investigation did not disclose any evidence adequate to support
any of the foregoing allegations. On the contrary, the Regional
Director found that Schuster's efforts on behalf of the Petitioner
were concerned with soliciting applications, an activity shared by
other employees, and with acting as an unpaid watcher at the elec-
tion, but that insofar as the organizational activities of the Petitioner
were concerned, meetings for that purpose were presided over by the
Petitioner's organizer. The Regional Director therefore concluded
that there was no evidence to support the Employer's allegations,
3 There was no representation that the Petitioner had in fact chartered a local organiza-
tion for the employees.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but that even if it were established that Schuster had made the alleged
coercive statements , they could not be attributed to the Petitioner
because of the lack of any evidence as to Schuster's authority to act
as agent for the Petitioner. The Regional Director accordingly
recommended that the objection be overruled.
In its exceptions, the Employer contends that, contrary to the
Regional Director's findings, its allegations are supported in signifi-
cant part by affidavits of rank-and-file employees. However, it does
not make such affidavits available to the Board. Moreover, the Em-
ployer does not specifically take issue with the Regional Director's
categorical statement that "no evidence ha[d] been offered to support
this allegation [of agency]."
The Board has consistently held that a party filing objections to
an election is obligated to furnish evidence in support of such objec-
tions, and that, unless such evidence is produced, the Regional Di-
rector is not required further to pursue his investigation of such
objections.' Furthermore, when, after investigation, exceptions are
filed to the Regional Director's report on objections, the Board has
held that it will overrule such objections unless the exceptions advert
to specific, substantial evidence controverting the Regional Director's
conclusions .4
In the present instance, we find it unnecessary to determine whether
or not the alleged coercive conduct occurred, although we take note
of the Regional Director's finding that the investigation disclosed
no evidence adequate to support any of the allegations set forth in
this objection, and his specific finding that there was no evidence that
Schuster was other than a rank-and-file employee whose acts as such
were not attributable to the Petitioner. It is undisputed that the
Employer did not furnish any evidence in support of its objection
as to agency, and as we have noted, in its exceptions it offered no satis-
factory evidence to controvert the Regional Director's finding. In
such circumstances, we conclude that the Employer's first objection
does not raise any substantial or material issue with respect to the
election.5 The objection is therefore overruled.
As to objection (2), the Employer contends that the Board and
the Regional Director erred in setting November 5, 1954, as the date
of determining eligibility to vote in the election,' and as to (3) that
3 Hincber Manufacturing Company, 106 NLRB 1314
* hfarman Bag Company, 103 NLRB 456.
6 J. Spevak & Co , Inc , at at , 110 NLRB 954 ; Poinsett Lumber and Manufacturing Com-
pany, 107 NLRB 234 ; Benton's Cloak & Suit Company, 97 NLRB 1327
9 The Employer 's assertion of this ground as an objection to an election is predicated on
a contention that the issue was raised on a motion for reconsideration of the Board's origi-
nal Decision and Direction of Election , but that the Board denied its motion for recon-
sideration without deciding the issue . Although the Board's order denying the Employer's
motion for reconsideration did not in specific terms refer to the Employer 's request to
set a later eligibility date , the order , nevertheless , was intended to deny such request as
without merit
N. B. LIEBMAN & COMPANY, INC. 91
the Board erred in finding Wanda Fetterman to be a supervisor and
therefore ineligible to vote in the election.' With respect to the ob-
jection concerning the eligibility date, the Employer concedes in its
exceptions that the date established by the Regional Director con-
formed to the Board's Decision and Direction of Election and repre-
sented the Board's customary practice, but argues, nevertheless, that
a later date should have been established so as to enable four em-
ployees, representing a 22 percent addition to its work force and hired
after the date of the Board's Decision and Direction of Election, to
vote in the election.
The Regional Director recommended that these objections be over-
ruled on the ground that the issues raised by the objections had been
previously decided by the Board against the Employer's contentions.
In its exceptions, the Employer reiterates its position.
We find, for the reasons set forth in the Regional Director's report,
the Employer's remaining objections to be without merit. Accord-
ingly, we overrule them.
The Challenged Ballots
At the election the Petitioner challenged the votes of the six fol-
lowing individuals : Wanda Fetterman, Dolores Gallo, Samuel Gross-
man, Harry Lipkowitz, Ray Dickenson, and Earl Satz. The Re-
gional Director recommended that the challenges be sustained and the
Employer excepts.
Wanda Fetterman was challenged as a supervisor. The Regional
Director recommended that the challenge be sustained because the
Board had previously determined that Wanda Fetterman was a su-
pervisor. By its challenge, the Employer seeks to preserve its posi-
tion on the issue. We find its exceptions without merit and the chal-
lenge is therefore sustained.
Dolores Gallo, Samuel Grossman, and Harry Lipkowitz were chal-
lenged on the ground that they were hired after November 5, 1954,
the eligibility date determined in accordance with the Board's De-
cision and Direction of Election. The Regional Director recom-
mended that the challenges be sustained as his investigation showed
that these individuals were not working on November 5, 1954, the
eligibility date, but had been hired at later dates. The Employer does
not controvert the Regional Director's findings, but excepts for the
same reason set forth in its objection to the election. For the reasons
set forth in the Regional Director's report, we sustain the challenges
to their ballots.
P The Employer 's motion , made after the Board issued its original Decision and Direc-
tion of Election herein , insofar as it was a motion for reconsideration, challenged the
Board 's findings that Wanda Fetterman was a supervisor.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have sustained challenges to 4 of the 6 ballots, we find it un-
necessary to pass upon the remaining 2 challenges, also contested by
the Employer, since they cannot affect the results of the election. Ac-
cordingly, as the Petitioner has secured a majority of the valid votes
cast, we shall, as recommended by the Regional Director, certify the
Petitioner as the exclusive bargaining representative of the employ-
ees in the appropriate unit.
[The Board certified Retail Clerks International Association, AFL,
as the designated collective-bargaining representative of all selling
and nonselling employees of N. B. Liebman & Company, Inc., at its
Pottsville, Pennsylvania, store, including the credit manager and j ani-
tress, but excluding warehouse personnel, drivers and their helpers,
and all supervisors as defined in the Act.]
MEMBER LEEDOM took no part in the consideration of the above Sup-
plemental Decision and Certification of Representatives.
Oswego Falls Corporation 1 and Syracuse Photo Engravers Union,
Local 20, International Photo-Engravers U n i o n of North
America, AFL, Petitioner . Case No. 3-RC-1488. April 12,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hymen Dishner, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Farmer and Members
Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.'
1 The Employer 's name appears as amended at the hearing.
2 Contrary to the Petitioner, the Employer contends that its current collective -bargain-
ing agreement with the Intervenor , International Brotherhood of Pulp , Sulphite Paper and
Paper Mill Workers, Fulton-Oswego Falls Sealright Local No 54, AFL, is a bar. The
Intervenor is neutral Since 1941 , the Employer and the Intervenor, as certified bargain-
ing representative of the Employer's production and maintenance employees, have been,
112 NLRB No. 45.