O. E. Szekely and Associates, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1957

117 N.L.R.B. 42 (N.L.R.B. 1957)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O. E. Szekely and Associates , Inc. and International Brother-
hood of Electrical Workers, AFL-CIO, Local Union 613, Peti-
tioner. Case No.10-RC-3358. January 9,1957
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
Pursuant to a Decision and Direction of Election dated May 1,
1956, an election by secret ballot was conducted in this proceeding on
May 23, 1956, under the direction and supervision of the Regional
Director for the Tenth Region among the employees in the unit
found appropriate by the Board.' At the conclusion of the election,
the parties were furnished a tally of ballots which showed that, of
approximately 173 eligible voters, 166 cast valid ballots, of which
1 was for the Petitioner, 79 for the Independent,' 79 for the Machin-
ists,3 and 6 against the participating labor organizations; there were
3 void ballots and 1 challenged ballot. As the results of the election
were inconclusive, the Regional Director on June 4, 1956, conducted
a runoff election pursuant to Section 102.62 of the Board's Rules and
Regulations. The tally of ballots thereafter issued to the parties
showed that there were approximately 180 eligible voters (including
challenged voters), and that 81 valid ballots were cast for the Inde-
pendent, 76 for the Machinists, and 21 were challenged. There were
no void ballots. The challenges were thus sufficient to affect the
results of the election.
On June 11, 1956, the Machinists filed timely "Objections to Con-
duct of Election and Objections to Conduct Affecting the Results of
the Election" in which it alleges various acts of interference on the
part of the Employer with the employees' free choice of a bargaining
representative, discrimination by the Employer against supporters of
the Machinists, and electioneering by certain specified employees and
alleged supervisors in the voting area during the runoff election.4
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation and on October 2, 1956, issued and
served upon the parties his "Report on Election, Challenged Ballots,
Objections, and Recommendations to the Board." The Employer
thereafter filed timely exceptions to the Regional Director's report.
.The Regional Director's investigation discloses that out of a total
of 21 challenged ballots, the Board challenged 6 on the ground that
I The unit description is as follows . "All production and maintenance employees at the
Employer's Commerce, Georgia , plant, including plant clerical employees , but excluding
office clerical employees , technical employees , professional employees , guards, and super-
vis6rs as defined in the Act."
' Independent Union of Szekely Employees.
a International Association of Machinists , AFL-CIO.
+ The above allegations were made part of a charge filed by the Machinists against the
Employer on July 6, 1956 , in Case No. '10-CA-2672. A complaint was issued on the basis
of that charge on September 12, 1956, alleging violations by the Employer of Section 8
( a) '(1), (2), and (3) of the Act.
117 NLRB No. 9.
0. E. SZEKELY AND ,ASSOCIATES, INC. 43
the voters' names did not appear on the eligibility list used in the
runoff election. The Machinists also challenged 1 of the foregoing
ballots challenged by the Board and challenged the • 15 remaining
ballots, all of which, but 1, were cast by voters whose names were
included on the eligibility list, on the ground either that they were
supervisors or office clerical employees and, as such, were excluded
from the appropriate production and maintenance unit. During the
investigation, the Employer contended that the parties had agreed
upon a list of eligible voters prior to the first election, that this list
also governed the eligibility of employees voting in the runoff election,
and that therefore the challenges should be honored only to the
extent that they are directed against ballots of employees whose
names were omitted from the agreed list of eligible voters.
In his report, the Regional Director rejected the Employer's con-
tention that a binding agreement had been entered into between the
parties concerning the eligibility of employees voting in the runoff
election and, without placing any reliance on the appearance or nonap-
pearance of any voter's name on the eligibility list, proceeded to a con-
sideration of each of the challenges on its merits. On the basis of his
findings as to the duties and status of the individual employees in-
volved, the Regional Director recommended that the challenges to 15
ballots be overruled and these ballots be opened and counted, and that
the challenges to 6 ballots be sustained. The Regional Director further
found that substantial and material issues have been raised by the
Machinists' objections with respect to the election, and recommended
that if, upon the opening and counting of the 15 challenged ballots
which he found to be valid, the objections have not thereby become
moot, a hearing be held upon such objections.'
The Employer does not except to the Regional Director's findings
of fact and conclusions with respect to the merits of the several chal-
lenges, and excepts only to the Regional Director's conclusion that there
was no agreement between the parties such as to govern eligibility in the
runoff election.6 It reiterates its contention that an eligibility list was
5 Apart from his disclosure that the allegations of the objections have also been made
part of a charge filed by the Machinists , the Regional Director has not discussed in detail
the substance of such allegations in his,report. His report indicates, however, that he has
found that substantial and material issues have been raised by all except allegation No. 7
of the objections
6 Although the closing paragraph of the Employer's exceptions contains a request in
general terms that the Board overrule the challenges and objections and certify the results
of the election , the Employer 's position, as reported by, the Regional Director and as re-
flected in the body of its exceptions , appears to be that the validity of the challenges should
be determined in conformance with the eligibility list It follows that, in accord with
this position , the Employer would, contrary to the Regional Director 's recommendations,
sustain the challenges to the ballots of Corbett , Parks, and Venable, whose names did not
appear,on the list but whom the Regional Director found to be eligible voters, and over-
rule the challenges to the ballots of Ensley and Hanley, whose names were included on the
list but -whom the Regional Director found to be ineligible . As the Regional Director's
recommended disposition of the remaining 16 challenges corresponds in each instance to
the appearance or nonappearance of the voter 's name upon the eligibility list, it is apparent
that the Employer 's exceptions have raised no issues affecting these challenges.
44 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
drawn up by agreement of the parties prior to the first election, and
cites the Consolidated Industries case ' as a recent expression of the
Board's policy of "honoring concessions made in the interest of ex-
peditious handling of representation cases in general." 8
In Consolidated Industries, however, the Board found that the
parties had settled a dispute which had arisen concerning the correct-
ness and completeness of an eligibility list by acceding to certain com-
promises, including the addition of four names which had been omitted
from the list, and by agreeing specifically that the list as thus revised
should constitute. the entire eligibility list. On the basis of that spe-
cific agreement the Board sustained a challenge to the ballot of an
additional employee whose name was not included on the list. In the
present case, however, the Regional Director has reported that no
contention has been made to him that at the checking of the roster prior
to the original election there was specific agreement as to the affected
individuals, i. e., a discussion by name of the affected persons, with
an agreement reached as to their *eligibility. The Regional Director
also reported that with respect to the runoff election, the Employer's
counsel declined to participate in a preelection conference for the pur-
pose of checking the eligibility list. Though it reiterates its conten-
tion that an eligibility list was agreed upon, the Employer has not
specifically excepted to either of these latter findings reported by the
Regional Director, nor has it adverted to any evidence which contro-
verts such findings.
The Board takes official notice of the fact that it is the essentially
uniform practice of its Regional Offices to conduct a meeting for the
purpose of checking an eligibility list, usually consisting of a list of
employees in eligible categories prepared and furnished by the Em-
ployer, as part of the preparation for each representation election.
The use of such a list is highly desirable, if not indeed essential, as a
means of facilitating the conduct of an election and enabling Board
agents and observers for the parties intelligently to assist and partici-
pate therein. The Board has never held, however, that merely the
preparation and checking of such a list constitutes an agreement that
precludes the possibility of challenges at the election, either as to
7 Consolidated Industries, Inc., 116 NLRB 1204.
8 with regard to these matters, the Employer's exceptions state as follows :
The facts herein are clearly those in the Consolidated Industries, Inc, case cited
above. Prior to the first election,the Board agent held a conference in the plant office
for the purpose of reaching an agreement on a list of eligibile voters.
Each of the parties was represented. The list was checked and agreed on by each
of the parties and used in the first election without dispute. In keeping with the
policy in this Region it was agreed that the same list was to be used in the second
election and that there was no need for the holding of a second conference for the
purpose of checking the same list. The parties met at the plant with the Board
Agent thirty (30) minutes prior to the opening of the polls. There was no question
raised at that time as to the accuracy of the list, neither omissions , or deletions.
O. E. SZEKELY AND ASSOCIATES, INC. 45
names appearing on, or names omitted from, such list.' The very
prevalence of resort to challenges in Board elections, a practice which
the Board approves and which is practically as universal as the use
of an eligibility list, attests to the fact that the preparation of such a
list in advance ordinarily is not regarded as a final and binding agree-
ment upon issues of eligibility, but is rather a guide or a tool the use
of which is to facilitate the election procedure.
Moreover, although the Board has on occasion honored a stipula-
tion relative to the unit placement or eligibility of certain employees,10
it has refused to do so where such a stipulation was contrary to the
Act," or to established Board policy.12 In the case of 2 of the 5
ballots as to which issue has been raised by the Employer's excep-
tions,13 the voters casting such ballots were found by the Regional
Director to have been office clerical employees. These two employees,
however, are part of a larger office clerical group, and to include them
in the production and maintenance unit, while at the same time
excluding the balance of the Employer's office force, clearly would be
contrary to established Board policy. For this reason, the Board
would not in any event honor an agreement to include the two voters
whom the Regional Director found were office clerical employees.
Also, contrary to the Employer's contention in its exceptions, it
would not appear that an eligibility list adopted for purposes of the
original. election, assuming that it had come to represent a final and
"Compare the following cases which , as the Regional Director indicated in his report,
are clearly distinguishable from the facts involved in the present proceeding : Stanley
Aviation Corporation, 112 NLRB 461, wherein the Board upheld a stipulation of the par-
ties-entered into during the course of litigation of the unit issue at the representation
case hearing , for exclusion of quality control department employees from the unit ; Gulf
States Asphalt Company , 115 NLRB 100 , in which , the Board rejected a contention of the
employer that two challenged voters were eligible , where the employer itself had omitted
the names of such voters from an eligibility list which it had furnished and had agreed
was complete and correct ; and Texas Prudential Insurance Company, 115 NLRB 1383,
wherein the Board held to be ineligible two employees whose names had been deleted from
the eligibility list by specific agreement prior to the election.
10 See cases cited in footnotes 7 and 9, supra.
11 Central Cigar & Tobacco Co.,, 112 NLRB 1094, 1096, and F. M. Reeves & Sons, Inc.,
114 NLRB 1243 , footnote 2, holding that the Board is not bound by the parties ' agreement
to include individuals who are supervisors within the unit. Colonial Shirt Corporation,
114 NLRB 1214 , footnote 3, excluding watchmen , despite the agreement of the parties,
because the Board found them to be guards within the meaning of the Act.
'5`The Yale it Towne Manufacturing Company, 112 NLRB 1268 , 1270. In this case the
Board• rejected the parties ' stipulation to include timekeepers in an office clerical unit
because it found the timekeepers to be plant clerical employees whom the Board customarily
includes in production and maintenance units and excludes from office clerical units.
13 These two ballots were cast by employees Ensley and Hanley, whose names appeared
on the eligibility list, but who were challenged by the Machinists as office clerical employees
and, as set forth above , were found by the Regional Director to have been ineligible to vote
in the election.
The remaining 3 of the 5 ballots were cast by employees Corbett , Parks, and Venable,
and were challenged by the Board agent on the ground that these voters ' names did not
appear , on the eligibility list. Corbett 's ballot was also challenged by the Machinists on
the ground that he was an office , clerical . The Regional Director found that Corbett and
Venable were plant clerical employees and that Parks was a truckdriver , and hence that
all three of these employees were eligible to vote in the election.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
binding agreement covering eligibility in such election, could there.
fore be regarded as fixing eligibility so as to preclude the right of
challenge, in the runoff election. Eligibility for purposes of a run-
off, though based upon the same eligibility date as that used in the
original election, is nevertheless not precisely the same. Thus Section
102.62 (b). of the Board's Rules and Regulations provides that
"Employees who were eligible to vote in the election and who are
employed in an eligible category on the date of the runoff election
shall be eligible to vote in the runoff election." [Emphasis
supplied.]
Accordingly, on consideration of the Regional Director's report and
the exceptions, and upon the entire record in this case, we find, contrary
to the Employer's contention, that the eligibility list used in the runoff
election is not controlling as to the eligibility of employees voting in
that election, whether the names of these employees appeared on the
list or had been omitted therefrom. As the Employer has not ad-
vanced any independent evidence to contradict the Regional Director's
findings as to the merits of the challenges, we hereby adopt his findings
and recommendations with respect thereto. Accordingly, we shall
overrule the challenges to the ballots of Borders, Evans, Fitzpatrick,
Harden, Little, Nation, Purcell, Sailors, Smith, Thompson, Vandivier,
Wilbanks, Corbett, Parks, and Venable, and sustain the challenges to
the ballots of Ensley, Hanley, Crowe, Dowdy, Hardman, and Tolbert.
We shall direct the opening and counting of those ballots as to which
we have overruled the challenges, and shall further direct that the
Regional Director 'thereafter issue a revised tally of ballots. In the
event it then appears that the Machinists has received a majority of the
valid votes cast in the election, we shall direct that the Machinists be
certified as the collective-bargaining representative of the employees
in the unit heretofore found appropriate. We shall also direct that if,
on the other hand, the revised tally of ballots shows that the Machinists
has not received a majority of the votes, a hearing be held to determine
the issues raised by the Machinists' objections, and the Employer's
exceptions, to conduct affecting the results of the election.14
14 In its exceptions the Employer has asserted that no hearing on either challenges or
objections should be held and that the Board should certify the results of the election.
It has also indicated , nevertheless , that if the Machinists should receive a majority of
votes in the election , a hearing might be necessary in order to determine whether the
parties' observers and the Board agent in charge of the election were responsible for
overlooking certain electioneering activity which the Machinists have alleged took place
within the voting area at the time of the election . The Employer has not adverted, how-
ever, to any specific evidence that the Board agent or the observers were in any way
derelict in their duties and the Regional Director 's report in nowise indicates that they
were Accordingly, we find no merit in the Employer 's contention that a hearing should
be held on the objections in the event the Machinists win the election . Moreover, we deem
it unnecessary to provide for the Machinists ' withdrawing its objections to the runoff
election in the event that it has won this election . The Ratio Packing Company, 113
NLRB 382 ; Keeshin Poultry Company, 97 NLRB 467.
0. E. SZEKELY AND ASSOCIATES, INC.
DIRECTION AND ORDER
47
IT IS HEREBY DIRECTED that, as part of the investigation to ascertain
representatives for the purposes of collective bargaining with the
Employer, the Regional Director for the Tenth Region shall, pursuant
to National Labor Relations Board Rules and Regulations, within
ten (10) days from the date of this Direction, open and count the
ballots of Borders, Evans, Fitzpatrick, Harden, Little, Nation, Pur-
cell, Sailors, Smith, Thompson, Vandivier, Wilbanks, Corbett, Parks,
and Venable; and thereafter prepare and cause to be served upon the
parties a revised tally of ballots, including therein the count of the
said challenged ballots, and issue a certification if the Machinists
receives a majority of the votes cast.
IT Is HEREBY ORDERED that if, upon opening and counting the ballots
of the above-named employees, the Machinists has not received a ma-
jority of the votes cast, a hearing be held to determine the issues
raised by the objections and exceptions to conduct affecting the results
of the election.
IT IS FURTHER ORDERED that, in the event a hearing is held, the hearing
officer designated for the purpose of conducting the hearing shall
prepare and cause to be served upon the parties a report containing
resolutions of the credibility of witnesses, findings of fact, and recom-
mendations of the Board as to the disposition of said objections.
Within ten (10) days of receipt of such report, any party may file with
the Board in Washington, D. C., an original and six copies of excep-
tions thereto. Immediately upon the filing of such exceptions, the
party filing shall serve a copy thereof upon each of the other parties,
and shall file a copy with the Regional Director. If no exceptions
are filed thereto, the Board will adopt the recommendations of the
hearing officer.
IT IS FURTHER ORDERED that the above-entitled matter be, and it
hereby is, referred to the Regional Director for the Tenth Region for
disposition as provided for herein, and in the event a hearing is held,
the Regional Director is hereby authorized to issue early notice thereof,
and at his discretion, to consolidate this matter wtih the complaint
proceeding pending in Case No. 10-CA-2672.15
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision, Direction, and Order.
'5 Inasmuch as the representation and complaint proceedings were both instituted in
the same Region, there is nothing to prevent the holding of a consolidated hearing to dis-
pose of the issues raised in both proceedings , if, in the opinion of the General Counsel,
such a course of action should be deemed necessary to effectuate the policies of the Act
or to avoid unnecessary costs or delays . See Section 102 33 of the Board's Rules and
Regulations ; N. L R. B. v. Dixie Shirt Co., 176 F. 2d 969 (C. A. 4).