Sewell Plastics, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1979

241 N.L.R.B. 887 (N.L.R.B. 1979)

SEWELL PLASTICS
Sewell Plastics, Inc. and Glenn E. Teague, Jr., and
Glass Bottle Blowers Association of the United
States and Canada, Local Union 248. Case II -
RD-265
April 16, 1979
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS PENFILa
AND MURPHY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election was conducted in this
case on November 16, 1977. The tally was 44 for, and
35 against the Union; and there were 10 challenged
ballots. Thereafter, the Employer filed timely objec-
tions to conduct affecting the results of the election
and, on January 5, 1978, the Regional Director issued
a Report on Objections and Challenges. The Regional
Director recommended that the objections be over-
ruled in their entirety; the challenge to the ballot of
King be sustained; the challenges to five ballots
(those of Chapman, Davis, Harrison, Hoss, and
McGraw) be overruled and the ballots counted, as
agreed to by the parties and a ruling on the four
remaining challenges which raise a supervisory issue
concerning Steele. Gilchrist. Parker, and Ratliff be
deferred until after counting of the five ballots as to
which challenges are overruled, and a hearing con-
ducted on them only if they then appear to be deter-
minative of the election. On January 27, 1978, the
Employer filed timely exceptions to the Regional Di-
rector's report and a brief. The Union filed a state-
ment in support of the Regional Director's report.
Upon previous consideration, the Board decided
that one objection, Objection 13. raised issues war-
ranting a hearing. By Order dated June 22. 1978, the
Board directed a hearing on that objection and de-
ferred further action. A hearing was conducted on
Objection 13 and July 27, 1978, and the Hearing Of-
ficer on October 12, 1978, issued a report recom-
mending that the election be set aside. The Union
filed timely exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the entire record in light
of the exceptions to the reports of the Regional Direc-
tor and the Hearing Officer, and the briefs. Except
with respect to Objection 13. we adopt the Regional
Director's findings and recommendations with re-
spect to overruling Employer's objections,' sustaining
the challenge to the ballot of King, overruling the
challenges to the ballots of Chapman, Davis, Harri-
son, Hoss, and McGraw, and deferring determination
of the challenges to the ballots of Steele, Gilchrist,
Parker, and Ratliff. With respect to Objection 13, we
adopt the Hearing Officer's credibility resolutions and
fact findings but reject the recommendation that the
election be set aside.
Essentially, the Hearing Officer recommended that
the election be set aside because two observers testi-
fied that during the election they could see how a
substantial number of ballots were marked. 2 The indi-
vidual RD petitioner, who was his own observer, tes-
tified that he could see the markings on certain ballots
when voters pushed the ballots into the ballot box. He
identified several voters whose ballots he was able to
read, but stated he told no one except. after the elec-
tion, the company attorney and the Board attorney
investigating the election objections, how individuals
voted. The Employer's observer also testified that he
could see how some ballots were marked as voters
deposited them in the box.3 He further testified that
between the two voting sessions he told a company
supervisor that he was able to read some ballots: and
he stated that he may have told some people how
individuals voted. Neither observer told the Board
agents handling the election that markings on ballots
could be seen. Apparently the voters were unaware
that observers could see how ballots were marked.
In these circumstances we see no reason to set aside
the election. Any possible impairment of the secrecy
of the ballot could not have affected the outcome of
the election or intimidated the voters in making their
choice as to representation.4 The Union was not in-
volved in any misconduct affecting the secrecy of the
ballot, and the two observers and company supervi-
sor, who were aware that marked ballots could be
read, did not inform the Board agents of the problem
at the election. Indeed, they made no objection con-
cerning it until the election was over and the ballots
counted.
I In adopting the Regional )lrector's recommendations. Chairman Fan-
ning does not rels on Shopping Karr Food Market, Inra. 228 NI.RB 1311
(1977), cited by the Regional Directr as an additional reason fitr oerruling
Objections 9 and I5. See General kInit of California. Inc, 239 NRB 19
(1978), in which a majoritm of the Board. Members Penello and Murph5
separately dissenting, overruled the Shopping Kart decision. Member Penelko
relies upon Shopping Kart Member Murphy relies upon her concurring opin-
ion in Shopping Karr
2 The other irregularities referred to bh the Hearing Officer were of a
minor nature.
The Union's observer, ho was located in a different position with re-
spect to the ballot box than were the other two obsersers. testitied that she
could not see how ballots were marked
I4 mperiul Reed & Rattan Furniurniur (, IX Nl.RB 911 11957), and The
Roil Lumhber (Crmparl. 118 NI.RB 1015 11957). are not apposite herein.
because they involved oting arrangements sshlih could have given oters
the mpression they were obsersed a thec oted
241 NLRB No. 144
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we find no reason to set aside the election, we
shall direct the Regional Director to count the five
ballots, the challenges to which have been overruled,
and to prepare and furnish the parties a revised tally
of ballots. If the tally shows that the Union has re-
ceived a majority of the ballots cast, the Regional
Director shall issue a certification of representative.
In the event the election is not determined by these
five ballots, the Regional Director shall conduct a
hearing on the supervisory issue raised concerning the
challenged ballots of Steele, Gilchrist, Parker, and
Ratliff, and resolve those remaining 4 challenges.
DIRECTION
It is hereby ordered that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer, the Re-
gional Director for Region 11, pursuant to the
Board's Rules and Regulations, within 10 days from
the date of this Decision and Direction, shall open
and count the ballots of Melvin Chapman, Faye Da-
vis, Marcene Harrison, Christian Hoss, and Cindy
McGraw, and shall prepare and cause to be served on
the parties a revised tally of ballots including the
count of said ballots. If the revised tally shows that
the Union has received a majority of the ballots cast,
the Regional Director is hereby ordered to issue the
appropriate certification of representative.
IT IS FURTHER DIRECTED that in the event the re-
vised tally of ballots does not determine the results of
the election, and the remaining ballots Allen Steele,
Robert Gilchrist, Andrew Parker, and James Ratliff
are determinative of the results, a hearing be held
before a Hearing Officer, to be designated by the Re-
gional Director, for the purpose of taking evidence
with respect to the issue of whether Steele, Gilchrist,
Parker, and Ratliff are supervisors as defined in the
Act. The Hearing Officer designated for the purpose
of conducting such a hearing shall prepare and cause
to be served on the parties a report containing resolu-
tions of credibility of witnesses, findings of fact, and
recommendations to the Board as to the disposition
of the issues. Within 10 days from the date of issu-
ance of such report either party may file with the
Board in Washington, D.C., eight copies of excep-
tions thereto. Immediately upon filing such excep-
tions the parties filing the same shall serve a copy
with the Regional Director. If no exceptions are filed,
the Board will adopt the recommendations of the
Hearing Officer.
IT IS FURTHER DIRECTED that the case be referred to
the Regional Director for the aforementioned pur-
poses, including the conduct of a hearing if necessary,
and the Regional Director is hereby authorized to is-
sue notice thereof.
888