Oakland Scavenger Co.

National Labor Relations Board - Board Decisions

Jul 18, 1952

100 N.L.R.B. 262 (N.L.R.B. 1952)

262 DECISIONS OF ,NATIONAL LABOR - RELATIONS BOARD
,the latter's• absence because of illness or vacation. They frequently
, accompany drivers on their routes to take inventory of the Employer's
.linen on each customer's premises, check complaints of customers, and
make necessary adjustments. - While accompanying the drivers they,
like the drivers, are under the supervision of the sales manager. Also,
like the drivers, they are paid on a salary basis, do not punch time
clocks, and work a 48-hour week.17 Although they may recommend
changes in routes when such routes have become larger than average,
the housemen do not have the authority to effect such changes or effec-
tively to recommend the hire or discharge of drivers. Housemen ap-
parently, have been excluded from the bargaining unit in the past.
However, we are of the opinion that they are not supervisors as defined
in the Act and, in view of the substantial portion of their time regu-
larly devoted to duties analogous to those of the drivers, we shall
include them in the voting group.
Accordingly, we shall direct an election in the following voting
group : All drivers of the Employer at its plant in Schenectady and
depot in South Glens Falls, New York, including drivers' helpers and
housemen, but excluding office and clerical employees, guards, and
supervisors as defined in the Act.
If a majority vote for the Petitioner, they will be taken to have indi-
cated their desire to constitute a separate appropriate unit, and the
Regional Director conducting the election directed herein is instructed
to issue a certification of representatives to the Petitioner for the unit
as described above, which the Board, under such circumstances, finds
to be appropriate for the purposes of collective bargaining. In the
event a majority vote for the Intervenor, the Board finds the existing
unit to be appropriate and the Regional Director will issue a certificate
of results of election to such effect.
[Text of Direction of Election omitted from publication in this
volume.]
14 However, housemen frequently work more than 48 hours a week and receive no
overtime pay.
OAKLAND SCAVENGER COMPANY and SCRAP IRON AND METAL SALVAGE
AND WASTE MATERIAL WORKERS' LOCAL No. 1088 , AFL, PETITIONER.
Case No. 20-RC-1649. July 18,1952
Supplemental Decision and Order
On May 16, 1952, pursuant to the Board's Decision and Direction
of Election herein, dated April 29, 1952,1 an election by secret ballot
1 98 NLRB 1318.
100 NLRB No. 49.
OAKLAND SCAVENGER COMPANY 263-
was conducted under the direction and supervision of the Regional
Director for the Twentieth Region, among employees in the unit
found appropriate in the Decision. Upon the completion of the elec-
tion, a tally of ballots was furnished to the parties. The tally reveals
that of approximately 133 eligible voters, 110 valid ballots were cast,
of which 52 were for and 57 against the Petitioner, 1 was challenged,
and 2 were void.
Thereafter, on May 19, 1952, the Petitioner filed timely objections
to the conduct of the election. In accordance with the Rules and Reg-
ulations of the Board, the Regional Director conducted an investiga-
tion and, on June 2, 1952, issued and duly served upon the parties his
report on objections to the election. In his report, the Regional Di-
rector found that the Petitioner's objections raised no substantial or
material issues which would justify setting the election aside, and
recommended that the objections be overruled. The Petitioner filed
timely exceptions to the Regional Director's determinations as to the
objections.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
In substance, the Petitioner's objections allege (1) that insufficient
time was allowed for checking the eligibility list, and (2) that be-
cause of the insufficient time to check the list, certain employees on
the list were allowed to vote who were ineligible to vote because of
their family relationship to shareholders in the Company?
As to the first objection, the Regional Director found that the Pe-
titioner was given an eligibility list by the Company at least 2 days
prior to the election and was given an opportunity to raise any ques-
tions respecting any individual's eligibility on that list, but failed to
raise any such question. As the Petitioner had 2 days, which we re-
gard as sufficient time in which to check an eligibility list, we find no
merit in this objection .3
The second objection, in our opinion, is likewise without merit.
The Petitioner did not, in support of its objections, supply timely the
Regional Director with the name or family relationship of any in-
dividual claimed to be ineligible to vote in the election. Accordingly,
the Regional Director recommended that this objection be overruled.
Although in its original objections , the Petitioner claimed only that employees related
to shareholders had erroneously been permitted to vote, the Petitioner in its exceptions
to the Regional Director 's report on objections , raised a new objection to the effect that
three watchmen were also erroneously permitted to cast votes because Petitioner had
insufficient time to check the eligibility list to identify them. We cannot consider such
objections as having a proper place in exceptions to a report on objections . Treated as a
supplement to its original objections to the conduct of the election , such objections are
nevertheless untimely . See Southern Wood Preserving Co., 89 NLRB 1243.
a See Wesco Manufacturing Company, 97 NLRB 901.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the Petitioner has not fulfilled its obligation to present timely evi-
dence in support of its objection, the Board will not consider such ob-
jection 4 Moreover, this objection is in the nature of a post-election
challenge which, as a matter of policy, the Board will not entertain.a
Accordingly, we shall, in agreement with the Regional Director,
overrule the objections.
As we have overruled the Petitioner's objections, and as the tally
of ballots shows that no collective bargaining representative has been
chosen, we shall dismiss the petition.
Order
IT IS HEREBY ORDERED that the petition herein be , and it hereby is,
dismissed.
* See Southern Wood Preserving Co., supra.
b See John Deere Sille}er Co.. 86 NLRB 1078.
EVERBEST ENGINEERING CORP, and AMALGAMATED MACHINE, INSTRU-
MENT AND METAL LOCAL 475, UNITED ELECTRICAL , RADIO AND
MACHINE Womuu s OF AMERICA, PETITIONER . Case No. $-RC-,3500.
July 18, 1952
Supplemental Decision and Direction
Pursuant to a Decision and Direction of Election issued by the
Board on June 26, 1951,1 an election by secret ballot was conducted
on July 19, 1951, under the direction and supervision of the Regional
Director for the Second Region, among the employees in the unit
found appropriate in said Decision.
Following the election, the parties were furnished a tally of ballots
which shows that there were approximately 70 eligible voters and that
67 ballots were cast, all of which were challenged. These challenges
are, of course, sufficient in number to affect the results of the election.
Thereafter, the Regional Director investigated the issues raised by
the challengers, and on April 30, 1952, issued his report on challenges,
in which he recommended that the challenges to the ballots of 41
voters be sustained, and that the challenges to the remaining 26 ballots
be overruled. The Petitioner filed exceptions to the report on
challenges.
The mass challenges in this case are explained by the fact that at
the time of the election there were pending against the Employer
unfair labor practice charges which put in issue the eligibility of all
1 Unpublished
100 NLRB No. 47.