New York Telephone Co.

National Labor Relations Board - Board Decisions

Aug 11, 1954

109 N.L.R.B. 788 (N.L.R.B. 1954)

788; DECISIONS OF NATIONAL LABOR RELATIONS BOARD
water main pipelaying work at the A. E. C. project, or that the Re-
spondent Local has changed its position. Furthermore, there is no in-
dication in the record that, by joining the Associated General Contrac-
tors, Cisco has bound itself to abide by the earlier jurisdictional
awards. Therefore, although the particular jobs which gave rise to
the present case have been completed, the underlying jurisdictional
dispute has not been resolved."
We accordingly find that the Respondent was not entitled to force
or require Cisco and Tri-State to assign the disputed work to pipe-
fitters to the exclusion of other employees.
Determination of Dispute
On the basis of the foregoing findings of fact and upon the entire
record in this case, the Board makes the following determination of
dispute, pursuant to Section 10 (k) of the Act :
1. United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Can-
ada, Local Union No. 32, AFL, is not and has not lawfully been en-
titled to force or require Cisco Construction Company and Tri-State
Plumbing and Heating Company to assign the laying of concrete re-
inforced water-main pipe to journeyman pipefitters rather than to
other employees.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, the aforesaid Local 32 shall notify the Regional
Director for the Nineteenth Region, in writing, as to what steps it has
taken to comply with the terms of this Decision and Determination
of Dispute.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Determination of Dispute.
10 The Untited Association of Journeymen, et at., Local 428, AFL ( Philadelphia Associa-
tion ), 108 NLRB 186.
NEW YORK TELEPHONE Co. and COMMUNICATIONS WORKERS OF AMER-
ICA, CIO , PETITIONER . Cases Nos. 2-RC-6634 and t-RM--588.
August 11, 1954
Decision, Order, and Direction of Election
Pursuant to a stipulation for certification upon consent election en-
tered into on March 4, 1954, a mail ballot election was conducted under
the direction and supervision of the Regional Director for the Second
Region, among the employees in the stipulated unit. The result of
this election was indecisive and a second all mail ballot election was
109 NLRB No. 116.
NEW YORK TELEPHONE CO. 789
conducted. The parties met at the Regional Office on June 4,1954, to
count the ballots. Thereafter, a tally of ballots was furnished the
parties , showing that of approximately 4,951 eligible voters, 3,680
cast valid ballots, of which 1,822 were for the Petitioner, 1,858 were
for the Intervenor, and 31 were challenged. An additional 27 ballots
were void. Immediately upon completion of the tally the Petitioner
refused to sign the tally and called attention to a marked discrepancy
between the number of ballots received and the number of votes
counted. Thereafter, the Petitioner filed formal objections.
The Regional Director conducted an investigation of the matter
raised by the Petitioner and, on June 11, 1954, issued and duly served
upon the parties his report on objections,' in which he recommended
in order to maintain the strict standards established by the Board for
the conduct of elections this election should be set aside and a new
election ordered. Within the proper time thereafter, the Employer
and the Intervenor 2 filed exceptions to the Regional Director's report.
The Board has considered the Regional Director's report, the ex-
ceptions, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Regional Director,
with the following additions.
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees 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.
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: All nonsupervisory employees in the
plant department of the Employer in its upstate area, excluding con-
fidential employees, 'professional employees, watchmen and guards,
and all supervisors as defined in the Act.
5. The exceptions raise no question relating to the factual findings
made by the Regional Director. Those facts may be stated briefly as
follows :
1 Petitioner on June 4, 1954 , wrote a letter to the Regional Director reiterating the ob-
jection raised verbally at the time of the tally, and on June 10, 1954, encompassed those
objections in a formal document , which together with a copy of the June 4 letter was served
upon the other parties on June 14, 1954. The Regional Director found that these objec-
tions were timely filed . The Intervenor contends that these objections should not be con-
sidered because the June 4 letter had not been served upon the other parties immediately.
The Board has maintained as an exception to the strict rules of timeliness of service of
objections , a situation where it appears that the irregularity is attributable to the Board's
own agents . Under such circumstances the Board will on its own motion consider the
matter , without, regard to the rules for the filing and service of ob jections. See Schlachter
Meat Co, Inc , 100 NLRB 1171 ; Active Sportswear Co., Inc., 104 NLRB 1057.
2 Empire State Telephone Workers Organization , Independent.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Petitioner called attention to the discrepancy, a search of the
counting room and a count of the names of employees checked off
the eligibility list as having returned ballots was commenced. The
search was unproductive and when it became apparent from the count
that a serious discrepancy existed between the returned ballots and
the tallied votes, the parties left the counting room without completing
the count of returned ballots checked off on the eligibility voting list.
Monday morning, June 7, a recheck by Board personnel of the vot-
ing list verified the discrepancy. A further search of the counting
room produced a box of unopened "Secret Ballot" envelopes, under a
pile of similar open and empty envelopes. The parties were advised
immediately of the discovery and were convened the next day. On
June 8, in the presence of the parties, a count of the box of "Secret
Ballot" envelopes disclosed 727 unopened envelopes and 2 envelopes
slit open at the top but with the ballots intact. The 729 found bal-
lots added to the 3,738 ballots tallied total 4,467. This figure tallied
exactly with the number of mail ballots received in the Regional Office.
The Regional Director was unable to obtain a stipulation from all
parties either to: (1) Waive objections and count the "found" bal-
lots; or (2) to set the election aside and conduct a new election. He
therefore issued his report in which he found that the misplacing of the
729 ballots was inadvertent, and that the counting procedure was con-
ducted without other irregularity or impropriety. The Regional Di-
rector was of the opinion, however, that had a more prompt and'
thorough check of the discrepancy been made before the parties were
permitted to leave the counting room, the missing ballots would have
been found and counted without the subsequent complications. Thus,
although the counting room was locked in the interim and it does not
appear there was any tampering with the ballots, the Regional Director
recommended that, in order to remove any doubt and to maintain the
strict standards established by the Board for the conduct of elections,
this election should be set aside. Exceptions to the Regional Direc-
tor's report were filed by both the Intervenor and the Employer. They
urge the opening and counting of the 729 "lost and found" ballots.3
The Board is responsible for assuring properly conducted elections
and its role in the conduct of elections must not be open to question.4'
Where, as here, the irregularity concerns an essential condition of an
election, and such irregularity exposes to question a sufficient number
of ballots to affect the outcome of the election, in the interest of
3 Exceptions present the arguments that the lost ballots were at all times in the posses-
sion of the Board under lock and key and no conjecture of tampering is conceivable ; that
the outcome of the election is dependent upon the counting of the unopened ballots ; that
the misplacement of the 729 ballots could in no manner infringe upon the rights of any
of the parties ; and, that it is unconscionable to subject the Government and the parties to
the expense and inconvenience of conducting a third election.
IL See Active Sportswear Co., Inc., footnote 1, supra; National Truck Rental Company,
Inc., 108 NLRB 1349; cf Republic Aviation Corp, 81 NLRB 1361, 1363.
NEW YORK SHIPPING ASSOCIATION 791
maintaining our standards there appears no alternative but to set
this election aside and to direct a new election.
`[The Board ordered the second mail ballot election be set aside.]
'[Text of Direction of Election omitted from publication.]
MEMBER BEESON took no part in the consideration of the above
Decision, Order, and Direction of Election.
NEW YORK SHIPPING ASSOCIATION AND ITS MEMBERS and INTERNA-
TIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT , AND AMERICAN
FEDERATION OF LABOR, INTERNATIONAL LONGSHOREMEN 'S ASSOCI-
ATION . Case No. 2-RM-556. August 12,1954
Order Directing Hearing on Challenges
On May 26, 1954, pursuant to a Supplemental Decision and Order
dated April 1, 1954, and a Second Direction of Election dated April 26,
1954, a second election by secret ballot was conducted in the above-
entitled matter under the direction and supervision of the Regional
Director for the Second Region. The tally of ballots issued on May
26, 1954, and served upon the parties, showed that the challenges were
sufficient in number to affect the results of the election. No objections
were filed by any of the parties to the election.
Pursuant to Section 102.61 of the Board's Rules and Regulations,
the Acting Regional Director made an investigation of the challenged
ballots, and on June 18, 1954, issued and served on the parties his
report on challenges. In his report, the Acting Regional Director
recommended that the Board overrule the challenges to 655 ballots;
sustain the challenges to 472 ballots; rule 12 ballots void; and if neither
union had a majority of the valid votes cast after opening and count-
ing of the first-mentioned group of ballots, that the Board direct a
hearing to take testimony with respect to a group of 630 voters chal-
lenged as alleged supervisors.
On June 28, 1954, the Association filed exceptions to the recom-
mendation that a hearing be held with respect to 550 of the 630 ballots
(the 550 representing those challenged as cast by "hatch bosses").
On July 1, 1954, the AFL filed exceptions to the recommendations
with respect to 2 challenged ballots (La Dagona and Noble) and 36
other ballots of individuals challenged as alleged supervisors, and
made certain additional requests not relating to any specific chal-
lenges. The Independent filed no exceptions.
On July 22, 1954, the Board issued an order directing the Regional
Director to open and count the 655 ballots as recommended by the
109 NLRB No. 124.