Penn Line Service, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1186 (N.L.R.B. 1971)

1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penn Line - Service, Inc., and, International Union of
Operating Engineers, Local 66, A, B, C, D & R,
AFL-CIO, Petitiooner.Case 6-RC-5650
August 27, 1971
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEI nERs
FANNING AND BROWN
Pursuant to a Stipulation for ' Certification Upon
Consent Election approved on December 15, 1970,
an election by secret ballot was conducted on
January 13, 1971, under the direction and supervi-
sion of the Regional. Director for Region 6 among
the employees in the stipulated unit. At the conclu-
sion of the election, the parties were furnished with a
tally of ballots which showed that of approximately
11 eligible voters, 10 cast valid ballots, of which 5
were cast for the Petitioner, 5 were against the
participating labor organization,--, and 1 ballot was
challenged by the Employer. The challenged ballot
was sufficient to affect the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended;
the said Regional Director conducted an investiga-
tion concerning the challenge. On February 17, 1971,
the Regional Director issued his Order Directing
Hearing on Challenged Ballot in which he concluded
that substantial and material issues of fact had been
raised concerning the status, of George Ward, who
voted the challenged, ballot here in question, which
issues could, best be resolved on the basis of -record
testimony developed at a formal hearing. Pursuant
thereto, a hearing was held on March 9,1971, before
Hearing Officer Michael A. Taylor. All parties
appeared, were accorded full opportunity to be
heard, to examine witnesses, to argue orally, and to
introduce relevant evidence. On April 20, 1971, the
Hearing Officer issued and served on the parties his
Report on Challenged Ballot in which he recom-
mended to the Board that the challenge to the ballot
of George Ward be overruled and that said ballot be
opened and counted. Thereafter, the Employer filed
timely exceptions to the Hearing Officer's Report
and a brief in support thereof.
1 In affirming that portion of the Hearing Officer's finding that Ward
was not effectively transferred as of the date of the election from the
Employer's shop to its tree trimming department, we rely particularly
upon the following evidentiary circumstances which are more fully set
forth in the Hearing Officer's Report (a) the Employer's own admission
that Ward was not notified of his transfer until February 26 , 1970, after
the election ; and (b) the testimony of Ward, substantiated by that of the
Employer, that Ward , when reporting back to work on February 26,
reported to Foreman Lynn of the Employer 's shop, and not to the tree
trimming department The Employer 's own departmental memo of
January 4, 1971, presented by the Employer as a record of personnel
action regarding Ward's transfer does not measure up to the probative
Pursuant to the provisions of, Section 3(b) of the
National" Labor Relations Act, as amended, the
National Labor Relations' Board has delegated its
powers in connection with this case to' a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Peitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within' the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The parties stipulated, and_ we find, the
following employees constitute a unit appropriate for
the purposes- of, collective bargaining within' the
meaning of the Act:
All maintenance" shop and storeroom employees
of the, Employer at, its Scottsdale, Pennsylvania,
location, excluding office clerical 'employees and
guards, professional employees and supervisors,
as defined in.the Act.
5. The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed., The rulings, are
hereby affirmed. The Board has considered the
Hearing,Officer's Report the Employees exceptions
and brief, and the entire record in this proceeding,
and hereby adopts the Hearing Officer's findings and
recominendations.r -
As we have adopted the Hearing Officer's recom-
mendatidn' that the challenge to the ballot of George
Ward be overruled, we shall direct that the Regional
Director open and count Ward's ballot and cause to
be served on the parties a revised tally of ballots and
an appropriate certification.
DIRECTION
It is hereby directed that, as part of his investiga-
tion to ascertain the representative for purpose of
collective bargaining with the Employer, the Region-
al Director for Region 6 shall, pursuant to the
Board's Rules and Regulations, within 10 days from
standards necessary to establish an accurate record of the event's actual
occurrence and cannot therefore be given decisive weight. We are
unwilling to permit an employee's eligibility to be determined by a self-
serving document promulgated only within the confines of the
Employer's office and therefore beyond any objective verification of its
existence. Any other rule would be both unfair and administratively
impractical. Without such probative evidence, and in the circumstances
of this case, we conclude, as did the Hearing Officer, that Ward was not
effectively transferred from the Employer's shop and maintenance
department prior to the election and , accordingly, was eligible to vote
therein.
192 NLRB No. 174
PENN LINE SERVICE, INC. 1187
the date of this Direction , open and count -the ballot ballots including therein the count,- of the above-
cast by - George Ward and thereafter prepare and mentioned ballot and an appropriate certification.
cause to be served upon the- parties a revised tally of