Norris, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1945

63 N.L.R.B. 502 (N.L.R.B. 1945)

In the Matter of NoRRIS, INCORPORATED and BAKERY AND CONFECTION-
ARY WORKERS, INTERNATIONAL UNION OF AMERICA, LOCAL UNION
No. 42, A. F. L.
Case No. 10-R-1408
SUPPLEMENTAL DECISION
AND
DIRECTION
August 23, 194
On February 1, 1945, the Board issued its Amendment to Decision
and Direction of Election in this proceeding.' Pursuant to the De-
cision and Direction of Election, as above amended, an election by secret
-ballot was conducted on February 16, 1945, by the Regional Director
for the Tenth Region (Atlanta, Georgia). On February 6, 1945, the
Regional Director, acting pursuant to Article III, Section 10, of
National Labor Relations Board Rules and Regulations-Series 3,
as amended, issued a Tally of Ballots.
The Tally indicated that, of the approximately 225 eligible voters,
152 cast valid votes. Of these, 71 were cast for the Union and 81
were cast against. In addition, 57 ballots were challenged and 1 was
void.
Since the number of challenged ballots could affect the outcome of
the election, the Regional Director, in accordance with the Board's
Rules and Regulations, investigated them and issued and served upon
the parties a Report on Challenges dated April 6, 1945. On April 12,
1945, the Company filed Exceptions to the Regional Director's Report.
Thereafter, it filed amended exceptions challenging the right to vote
of three persons, whose votes had not been challenged at the election,
on the ground that they were not employees of the Company at the
time of such election. The Union filed no exceptions to the report
of the Regional Director.
In his Report on Challenges, the Regional Director recommended
sustaining some of the challenges and overruling others. On April
21, 1945, the Board, having found that substantial and material issues
had been raised with respect to the challenged ballots, directed a hear-
I Decision and Direction of Election was issued on January 31, 1945, 60 N. L. R. B 297.
63 N. L I{ B., No. 78.
502
NORRIS, INCORPORATED 503
ing with respect to all rulings of the Regional Director to which the
Company took exception, including the taking of evidence as to the
three non-challenged ballots to which the Company objected in its
amended exceptions, but excluding evidence with respect to the chal-
lenges interposed by the Company regarding the ballots of eight em-
ployees now the subject of unfair labor practice charges.
Pursuant to notice duly served upon the parties, a hearing was
held on May 23, 24, 25, and 26, 1945, in Atlanta, Georgia, before Henry
J. Kent, Trial Examiner. The Board, the Company, and the Union
appeared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. At the opening of the hearing, counsel for the
Board moved to strike the Company's exceptions, to dismiss the hear-
ing, to quash the notice of hearing, and objected to the taking of any
testimony during the hearing. The motions were denied, but later
renewed and submitted by the Trial Examiner to the Board. The
motions are hereby overruled. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded, an opportunity to file briefs with the Board.
Upon the record so made, the Report on Challenges, the Exceptions,
and Amended Exceptions of the Company and the record previously
made, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
In his report on challenges, the Regional Director recommended
that the challenges to the ballots of Bennie Dixon, Dessie Mae Hyde,
Lillie Mae Landress, Annie Maud Turner, Vera Mae Woithani, Syble
Merchant, Clara Winters, Lula Mae Kilgore, Sadie Timms, Lois
Glaze, and Evelyn Tillison be sustained and that the challenges to
the ballots of John C. Colbert, John Henry Austin, Archie Dillard,
Rufus Phelps, Frank Hogan, Chester Grey Franklin, Seaborn John-
son, Odell Hambly, and Vesta Barnett be overruled. None of the
parties excepted to the foregoing recommendations.2 We concur with
the recommendations of the Regional Director and hereby sustain the
challenges to the ballots of Bennie Dixon, Dessie Mae Hyde, Lillie Mae
Landress, Annie Maud Turner, Vera Mae Worthaln, Syble Merchant,
Clara Winters, Lula Mae Kilgore, Sadie Timms, Lois Glaze, and
Evelyn Tillison and hereby declare valid the ballots of John C. Col-
bert, John Henry Austin, Archie Dillard, Rufus Phelps, Frank Hogan,
Chester Grey Franklin, Seaborn Johnson, Odell Hambly, and Vesta
a In its brief , the Union for the first time took exception to the disposition by the Regional
Director of the ballots of 'Merchant , Hambley, and Kilgore . Since these exceptions were
not timely made , we shall not here consider them.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barnett. We shall direct that the ballots of the last mentioned group
of employees be opened and counted.
The Company took exception, however, to the recommendation of
the Regional Director with respect to 1 chemist, 3 porters, 1 maid, 2
employees who were not listed on the pay roll, 18 employees who al-
legedly quit since the strike,' and 4 alleged assistant foreladies. As
already noted, it also filed amended exceptions concerning 3 ballots
cast but not challenged at the election. The -evidence taken at the
hearing before the Trial Examiner related to each of the above-
mentioned employees and will be discussed hereinafter seriatim:
I. Chemist
The unit finding 4 made no mention of this employee category.
Asher Lee was challenged by the Union on the ground that he was a
chemist. The Company asserts that he is a working chemist who also
makes candy. In addition to spending approximately 10 percent of
his time in purely technical work, 30 percent in making flavors used
in the Company's production, and the remaining 60 percent of his
time in non-clerical routine jobs, Lee has supervisory authority over
the helpers, who work along with him. We are of the opinion that
Lee is a supervisory employee within the meaning of our usual defini-
tion of that term. We find, therefore, that he was ineligible to vote
in the election and we shall sustain the challenge to his ballot.
II. Porters
Rupert Redmon, Paul Lowe, Onnie McKinney: Porters were spe-
cifically excluded as such from the appropriate unit. The vice presi-
dent and general manager of the Company testified that there were
five or six employees doing just porter work. He described the duties
of porters as consisting of sweeping, mopping, taking out garbage,
removing empty boxes from a tray and cleaning pans for candy
makers. ,
Redmon works on the fourth floor with Asher Lee. He carries in
sugar for the making of candy but has no knowledge of the candy
making process. On occasions, he starts the fire under the kettle and,
8 A strike which had begun on November 16, 1944 , was in progress at the plant at the
time of the original hearing The Board , in conformity with the agreement of the parties,
provided that the pay roll for the week beginning November 13, 1944, be used to determine
eligibility. At the time of the election, the employees were still on strike.
4 The appropriate unit was described as follows, All inside workers of the Company,
including the truck driver, but excluding office workers , sales department employees , factory
office workers , mechanic and maintenance employees , porters , cafeteria employees , box de-
partment employees , elevator operator , printer, assistant foreladies , and all other super-
visory employees with authority to hire, promote , discharge. discipline , or otherwise effect
changes in the status of employees or effectively recommend such action.
NORRIS, INCORPORATED 505
on rare occasions, he helps turn the kettle out. His main job appears
to be cleaning the slab, a 30-minute job, five or six times a day. He is
sometimes assisted in this by one of the candy makers' helpers. He
also cleans the kettle, carries out garbage and spends about 30 minutes
each evening cleaning pots and pans and sweeping. Although the,
Company asserts that he is a candy makers' helper, it is significant
that he has no health card, a prerequisite in the State of Georgia for
anyone handling food products.
Lowe works with a candy maker oil the third floor and carries in
sugar. He does little or no production work as appears from the fact
that he never helps do anything connected with the candy making
process. He sweeps around the machines during working hours and
does a more thorough cleaning job each Friday evening. At the time
of the hearing, he was also engaged in porter work of a slightly dif-
ferent nature.
McKinney is engaged substantially all his time in carrying to the
packers empty boxes, tissue paper, and trays for these boxes and
miscellaneous material used in packing, and in carrying away boxes
after they are packed.
On all the facts, we are persuaded that these employees perform the
work typical of porters in the confectionary industry. We, therefore,
conclude that Redmon, Lowe, and McKinney are'porters and that they
were ineligible to vote at the election. We shall declare their ballots
invalid.
III. The Maid
Hattie B. Jones: The Union challenged the ballot of Hattie B. Jones
on the ground that she was a maid and not a production worker. On
November 1G, 1944, the day of the commencement of the strike, Jones
was a third floor maid, who occasionally worked in the cafeteria. Her
duties were to clean lavatories and restrooms, pick up bottles, wash
out fountains, clean the enrobing room and clean floors. Since that
time, she has been assigned to another section where she is assisting
another employee, and both of them are doing the work formerly done
by four girls. Her present duties are to assist in the weighing of
candy, to send it down to the packers, and to stock candy. We find
that at the time of the commencement of the strike, Hattie B. Jones
was a maid. Although her duties since that time have been different,
We note that the Dictionary of Occupational Titles and the Job Descriptions for the
Confectionary Industry , Published by the Department of Labor in 1939, define a porter as one
who keeps the working area in production departments in a clean and orderly condition,
who sweeps the floors and aisles , who tidies working areas by arranging hand trucks , boxes,
materials , and other articles in an orderly manner . In the confectionary industry a porter,
besides performing the work described above, would also be charged with the duties of clean-
ing and scrubbing any and all candy -cooking and candy-handling equipment.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is apparent that this is merely a temporary change and that she
will return to her former duties when the Company resumes normal
operations. We have heretofore held, as we do now, that an employee
who is temporarily assigned to another job and who will thereafter
resume the duties originally performed, may not vote in the group
where such temporary assignment places him .6 Accordingly, we find
that Hattie B. Jones was ineligible to vote in the election and shall
declare her ballot invalid.
IV. Names not on the pay roll
Pauline Blackburn and Louise Cerullo were challenged as not ap-
pearing on the pay roll for the week of November 13, 1944, which was
the pay roll designated for determining eligibility.
Blackburn left the Company on November 10 or 11, 1944, due to
illness with intentions of returning when well. She sent word of her
illness to her forelady by a fellow employee each day until the com-
mencement of the strike, November 16, 1944. She testified that at the
time of the election, February 16, 1945, she intended to return to work
for the Company, but that sometime in March she started raising
chickens and then decided not to return to work. No notice of sepa-
ration, release , or statement of availability was sent her by the Com-
pany. Her bond deductions were not returned until about the first of
May 1945, after the termination of the strike. Since she was ill on
the eligibility date, and since her decision not to return to work for
the Company occurred sometime after the date of the election and is
therefore in no way determinative of her eligibility to vote in the elec-
tion, we find her to have been an employee of the Company, temporarily
absent due to illness, on the eligibility date. Accordingly, we shall
overrule the challenge to her ballot and shall declare her ballot valid.
Cerullo was employed by the Company for 3 days, November 6, 7,
and 8, 1944, and left, seemingly with no intent to return, complaining
of the fact that it was too cold in the plant and that she had no one at
home to care for her" children. Although requested to return by the
Company during the strike, she refused to return for the same reasons
that had forced her to remain away from work. Since this employee
had no intent to return to work for the Company when she left in No-
vember 1944, it is our opinion that she severed her employment rela-
tionship at that time and that she was not an employee of the Com-
pany on the eligibility date. Accordingly, we shall declare her ballot
invalid.
0 Matter of Hadley Peoples Monaifaeturnng Company, 61 N. L R B 236 ; Matter of Basic
Magnesium Company, 56 N. L It. B. 412.
NORRIS, INCORPORATED 507
V. Employees whose ballots were challenged on the ground that they
had quit during the strike
All of the employees discussed hereinafter were listed on the pay
roll used for determining eligibility. They were challenged by the
Company on the ground that they had quit during the strike. As
already noted, the strike began on November 16, 1944, and was still in
progress on the date of the election February 16, 1945. It is appar-
ently the Company's position that in each case the employee by either
accepting employment elsewhere during the period between the eli-
gibility date and the election date, or by some other conduct, had
effected a severance of his employment 7 with the Company and, was
therefore not eligible to vote at the time of the election.
Nettie Bradford and Liselotte Myer: No evidence was adduced to
show that either of them intended to terminate her employment with
the Company or had accepted any kind of employment before the
election day. Since they were listed on the pay roll used to determine
eligibility and since no reason appears for finding that these employees
had quit during the strike, we hold that these employees were eligible
to vote and shall direct that their ballots be counted.
Ida L. Nadell: This employee did not seek any other employment
until April 10, 1945, nor did she intend to quit prior thereto. The
Company agrees that her vote should be counted. We shall direct that
the challenge to her ballot be overruled and that her vote be counted.
Eva Lee Stegall: At the time of the strike Stegall, who joined with
the strikers, had been an employee of the Company for 18 years. After
the termination of the strike late in February, she applied for and was
refused reinstatement with the Company. Although she had applied
in January 1945 for a referral from the United States Employment
Service, herein called the U. S. E. S., Stegall testified that she made
no use of this referral and had always intended to return to the Com-
pany at any time a job was offered her. On April 9, 1945, she applied
for work with National Biscuit Company on the basis of a new referral
from U. S. E. S. Under the circumstances, we are unable to find that
the mere application to the U. S. E. S. in January 1945, effected a
severance of Stegall's employment relationship with the Company.
On the contrary, we are of the opinion that she was an employee of the
Company on the election date. Accordingly, we shall overrule the
challenge to her ballot and shall direct that her ballot be counted.
Ruth Petty: This employee was listed on the pay roll used to de-
termine eligibility to vote. The record does not support the Company's
' Although in many instances the Company relies on the fact that the employees did not
make application for reinstatement before obtaining employment elsewhere , this contention
is of no validity in view of the Company's policy made known to the emplovees during the
strike of not reinstating any employee whose ballot had been challenged
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention that she had severed her employment with the Company
at the time of the election.8 Accordingly, we shall declare her ballot
valid .9
Bessie Connor: Connor took a job with Murray Company, an At-
lanta firm engaged in making shells for the armed forces. She was
hired as a temporary employee November 28, 1944, and became a
permanent employee 30 days thereafter. Because this employee had
severed her employment relationship with the Company before the
date of the election, we shall sustain the challenge to her ballot and
shall direct that her ballot not be counted.
Rosa Clyde Smith: This employee is presently employed at a United
States Government warehouse in Atlanta. She took the job with the
understanding that it was to be a temporary one and so notified the
Company and the Government. There is no indication as to exactly
when she began to work at this job. Under the circumstances, and in
view of the fact that Smith had requested temporary employment at
the Government warehouse and inasmuch as her intent to return to
the Company whenever the Company would reinstate her is clear, it
is our opinion, and we find, that this employee has not severed her
employment relationship with the Company. We shall, therefore,
direct that her ballot be opened and counted.
Bessie Jones: This employee worked during the week of November
13, 19441 the pay-roll period agreed upon as determinative of eligibility.
While at work on November 13, she threatened to quit and was urged
by her supervisor, Whittemore, -to "go home and think it over." The
following day she appeared in person at the plant and reported to the
Company that she had decided not to quit. At that time, she ap-
parently also indicated that she was ill and unable to work that day.
She remained in bed thereafter until shortly before,the termination of
the strike. Jones' daughter, an employee of the Company, thereafter
notified the Company of her mother's illness and that her mother
would not be able to return to work until she had recovered. Follow-
ing her recovery, Jones did not seek other employment. We are per-
suaded that Jones was absent from work after November 13 because
of illness and that she was still an employee of the Company on the
date of the election . We shall overrule the challenge to her ballot and
shall direct that her ballot be counted.
"Although the evidence discloses that Petty made an application for employment to
National Biscuit Company in April 1945 . in which she stated that her termination date with
Norris , Incorporated , was November 1944, and in which she gave the reason for her termi-
nation as "quit ," we regard this evidence as shedding no light on her employment status
with the Company on the election date.
6 The Board's attorney moved to dismiss the exceptions insofar as they relate to Stegall
and Petty on the ground that no evidence had been adduced to show that these employees
or either of them was employed elsewhere in any capacity prior to the election, the termi-
nation of the strike , the applications for reinstatement , or the refusal of the Company to
reinstate . Ruling on this motion was reserved for the Board. In view of our finding that
their ballots be counted , we find it unnecessary to rule on this motion.
NORRIS, INCORPORATED 509
Thelma Morgan, Lois McConnell, Dorothy Louise Schultz, Emma
Pirkle, Opalee Butler, Myrtle Castell, Lillian Burton, Willie Daniel,
A. B. Thomas, Hilda Pitts: These employees worked for the Company
until' November 16, 1944, when they went out on strike. Each em-
ployee accepted employment elsewhere before the election date 10 Al-
though each one applied for his job through the medium of a U. S. E. S.
referral, it is clear from the evidence that each was seeking only tem
porary employment and in almost every instance, either personally or
through a union representative made known to the new concern his
intention to keep the way open for a return to the Company whenever
the opportunity presented itself. In almost every instance promises
were received from the new employer that the hiring would be tem-
porary in nature, and that releases would be forthcoming at any time
such temporary employee desired to return to the employ of the
Company.
The Company argues that these employees must have stated to the
U. S. E. S. that they had either quit their last employment or that
they had not worked during the period then fixed by regulation of
the War Manpower Commission and that either of these statements
would be equivalent to a stated intent to leave the Company's employ.
The Company further insists that none of the employees could be
reinstated without action of the U. S. E. S., and that, since the Com-
pany is engaged in lion-essential work, the employees will never be
permitted to return to the Company's employ while the aforesaid War
Manpower Commission regulations remain effective." The Company
is thus contending that these employees, by availing themselves of
the services of the U. S. E. S., and by taking other jobs through that
medium, abandoned the strike and have ceased to be employees of the
Company. We do not agree. An employee involved in a strike may
take temporary employment and he will not by such action be consid-
ered as having abandoned the strike 12 It is true that these employees
took advantage of a U. S. E. S. referral under War Manpower regula-
10 Daniel took employment with Atlanta Lithograph Company in December 1944, Mc-
Connell, Schultz , Pirkle, Butler , and Burton obtained employment with National Biscuit
Company in January 1945, Casten was employed by Lee Baking Company in the same
month ; Morgan worked for National Screen Company for a period of 9 days, February 2
to 9, 1945, Thomas , who was a veteran of the present war, also took employment with
Lee Baking Company some time after the strike began, and thereafter took a job in a
cafeteria ; and Pitts took a job with Retail Credit Company.
"The pertinent regulations of the War Manpower Commission directed, in effect, that
(1) save in special circumstances, with the approval of the Regional Director of the War
Manpower Commission, no person on strike would be referred to another employer in the
event that the War Manpower Commission was informed of the strike ; ( 2) all employment
must be taken through U. S. E. S. whether it be essential or non-essential in character ;
and (3 ) no one was to be referred to non- essential employment unless there was no pos-
sible use for the particular talents of the individual in any essential occupation in the
area. All these provisions , however, were waived with respect to veterans of the present
war who were considered by the War Manpower Commission to be free agents subject to no
restrictions
12 Cf. Matter of Sullivan Machinery Co , 31 N. L. R. B 749.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions which purported to deny such referral to strikers. It is also clear
that, having taken a job through such means, these employees could
be reinstated with the Company only through action of the U. S. ,E. S.
However, these considerations cannot operate to alter the fact that
these employees took employment elsewhere only until they could
return to work for the Company. Accordingly, we find that by utiliz-
ing the referral procedure of the U. S. E. S. and taking a temporary
job as a result of such referral, the employees herein neither abandoned
the strike nor lost their status as employees of the Company Y3 We
are, therefore, of the opinion that these individuals were employees of
the Company on the election date and were eligible to vote 14 We shall
overrule the challenges to their ballots and declare their ballots valid.
VI. Assistant foreladies
The four employees discussed herein were challenged by the Com-
pany on the ground that they were assistant foreladies. The Decision
and Direction of Election specifically excluded assistant foreladies
from the unit.
Nell Gentry: This employee is a production clerk who has been with
"the Company since 1927. She is stationed on the main floor packing
room and has a desk there. Her duties are to keep daily production
records and to make up production schedules. Since her clerical duties
are not, save when the plant is running at capacity, sufficient to keep her
occupied full time, she usually spends 31/ to 4 hours daily doing odd
production jobs in the packing room. Her duties require that she spend
about one-half hour more a day than the 91/.2 hours spent by the other
employees in her department. She has no supervision or control over
any employees.
Edith, Worley: She is an assistant shipping clerk and the most experi-
enced employee in the shipping department. She fills orders, keeps rec-
ords, and makes out bills to accompany goods shipped from the plant.
She has never been advised of her supervisory authority, if any, and
has never made any recommendations or reported anyone to the ship-
ping clerk. She does take the place of the shipping clerk when he is ill
or on vacation. The shipping clerk has been absent but 2 weeks and 2
days in almost 3 years. Although the Company contends that Worley,
as an assistant shipping clerk, has the right to hire and discharge and
'effectively recommend such action, the record discloses that all hiring
and discharging is done on a higher level than that of the shipping
clerk.
14 Cf Matter of Shennandoah-hives Mining Conpanrl, 35 N L R B 1153
w Cf Matter of The Yoder Company, 53 N L R. B 653. and Matter of Seattle Drum
Company, 61 N. L R B 483, which are distinguishable on their facts from the instant
case.
1
NORRIS, INCORPORATED , 511
Beatrice McDaniel: Two weeks prior to the strike this employee was
asked to take charge of the enrober room. She was the only employee
of the Company sufficiently familiar with the machines and tempering
of chocolate to be able to do the work properly. As part of her duties
she was to train a new male employee, Curran, to do that job, it being
understood that she was to return thereafter to her position as head
stroker. The more arduous work in the enrober room was to be done
by Curran since the job entailed work which was too strenuous for a
woman. She was never informed of her alleged supervisory status
and understood that she had supervision over the machines and not
over the girls . Her rate of pay was not changed and it was much
lower than that of any supervisory employee in the Company.
Lula Rivers : Rivers is an assistant to Whittemore , who is in charge
of the entire third floor , i. e., chocolate dipping room , enrober room,
chocolate room, bon bon department , and crystallizing and cutting
room . Rivers weighs candy centers and enrobed candy, and keeps
records thereof . Each work day she spends 1 hour taking inventory
of all departments under Whittemore's supervision . It is apparent
that she has no supervision over the other employees in the chocolate
room. Approximately 3 years ago she was expressly told to have
nothing to do with any complaints of the girls , and since that time has
made no recommendation of any sort.
We are of the opinion, on the basis of the entire record, that Gentry,
Worley, McDaniel , and Rivers are not vested with sufficient indicia
of authority to warrant the conclusion that they are supervisory em-
ployees within the meaning of our usual definition of that term. We
find, therefore , that Gentry , Worley, and McDaniel are eligible to vote
and we shall overrule the challenges to their ballots . However, since
Rivers is presently the subject of unfair labor practice charges, we
shall defer ruling on the validity of her ballot pending disposition of
such unfair labor practice charges. In the event that the Company is
hereafter found to have engaged in unfair labor practices in discharg-
ing Rivers and the Board orders her reinstatement , her continuing
employee status will have been established.
VII. Post-election challenges
Martha Bass, Julia Mae Dobbs, and Annie Lee Gullet were listed on
the pay roll furnished by the Company and used to determine eligibility
to vote in the election . They voted without challenge at the election
and the Company 's representative certified that the election was prop-
erly conducted . The Company in its amended exceptions challenges
the ballots of these three persons on the ground that they were not
employees of the Company at the time they voted. In the latter con-
nection, the record shows that Bass and Dobbs were hired in January
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1945 by National Biscuit Company through U. S. E. S. referrals with
the understanding that they were free to return to the Company when-
ever they so desired. With respect to Gullet, the record shows that,
on February 12, 1945, she took employment in one of the ration boards
of the Office of Price Administration. At that time she was advised
that she would remain a temporary probationary employee for a
fixed period.
Although the Company contends that, at the time of the election,
it was unaware of the above facts and therefore failed to challenge
the ballots involved, we are unable to consider the Company's conten-
tion at this stage. The Board follows a policy of differentiating be-
tween objections to the conduct of an election and challenges the eli-
gibility of voters and it does not ordinarily permit challenges under
the guise of objections after the election. To the end that elections
may be handled fairly and expeditiously, the Board has provided a
simple and efficacious procedure for permitting parties who have objec-
tions to the eligibility of any voter to challenge the voter at the election
and thereby to effect a separation of the ballot of the challenged voter
for subsequent consideration by the Board without jeopardizing the
entire election. Because the Company failed to challenge Bass, Dobbs,
and Gullet at the election identification of their ballots which would
otherwise have been segregated, is foreclosed. Recently, in the Tower
case,15 a majority of the Board refused to consider a post-election
challenge and said :
We have consistently adhered to the salutary doctrine of not
considering postelection challenges because of our belief that
otherwise an election could be converted from a definitive reso-
lution of preference into a protracted resolution of objections,
disregarded, or suppressed against the contingency of an adverse
result. Moreover, a postelection challenge forecloses identifica-
tion of the ballot which would otherwise have been segregated.
Since the challenged ballot may have been cast against the Union,
it would be necessary in order to sustain a challenge to set- aside
the election even though a majority of the valid votes have been
cast for the Union. We do not believe it to be sound administra-
tive practice to overturn an election under these circumstances
when such a result flows from the fault of the objecting party.
No sufficient ground has been urged, nor do we perceive any reason,
for reaching a contrary result in the instant case. Accordingly, we
shall not here consider the post-election challenges and shall deny the
Company's implied request to set aside the election, in the event that
the results of the election appear to turn on the counting of these three
ballots.
15 Matter of A. J. Tower Company, 60 N. L . R. B. 1414.
NORRIS, INCORPORATED 513
For the reasons indicated above we conclude and find that Bennie
Dixon, Dessie Mae Hyde, Lillie Mae Landress, Annie Maud Turner,
Verna Mae Wortham, Sybil Merchant, Clara Winters, Lula Mae Kil-
gore, Sadie Timms, Lois Glaze, Evelyn Tillison, Asher Lee, Rupert
Redmon, Paul Lowe, Onnie McKinney, Hattie B. Jones, Louise Cerullo,
and Bessie Connor were not entitled to vote in the election, and their
ballots are hereby declared invalid.
We further find that John C. Colbert, John Henry Austin, Archie
Dillard, Rufus Phelps, Frank Hogan, Chester Grey Franklin, Seaborn
Johnson, Odell Hambly, Vesta Barnett, Pauline Blackburn, Nettie
Bradford, Liselotte Meyer, Ida L. Nadell, Eva Lee Stegall, Ruth Petty,
Rosa Clyde Smith, Bessie Jones, Thelma Morgan, Lois McConnell,
Dorothy Louise Schultz, Emma Pirkle, Opalee Butler, Myrtle Castell,
Lillian Burton, Willie Daniel, A. B. Thomas, Hilda Pitts, Nell Gentry,
Edith Worley and Beatrice McDaniel are eligible to vote in the elec-
tion and their ballots are hereby declared valid. Since the results of
the election may depend on the counting of the challenged ballots de-
clared valid, we shall direct that they be opened and counted.
DIRECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board-Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Norris, Incorpo-
rated, Atlanta, Georgia, the Regional Director for the Tenth Region
shall, pursuant to the Rules and Regulations of the Board set forth
above, and subject to Article III, Sections 10 and 11, of said Rules and
Regulations, within ten (10) days from the date of this Direction open
and count the ballots of John C. Colbert, John Henry Austin, Archie
Dillard, Rufus Phelps, Frank Hogan, Chester Grey Franklin, Seaborn
Johnson, Odell Hambly, Vesta Barnett, Pauline Blackburn, Nettie
Bradford, Liselotte Meyer, Ida L. Nadell, Eva Lee Stegall, Ruth Petty,
Rose Clyde Smith, Bessie Jones, Thelma Morgan, Lois McConnell,
Dorothy Louise Schultz, Emma Pirkle, Opalee Butler, Myrtle Castell,
Lillian Burton, Willie Daniel, A. B. Thomas, Hilda Pitts, Nell Gentry,
Edith Worley, and Beatrice McDaniel, and thereafter prepare and
cause to be served upon the parties in this proceeding a Supplemental
Tally of Ballots embodying therein his findings and his recommenda-
tions as to the results of the ballot.
MR. GERARD D. REILLY took no part in the consideration of the above
Supplemental Decision and Direction.