Spencer Press Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1958

121 N.L.R.B. 784 (N.L.R.B. 1958)

784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer, within Section 9 (c) (1)
and Section 2 (6) and (7) of the Act 2
4 The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within Section
9 (b) of the Act 3
All production and maintenance, warehousemen and shipping
employees at the Employer's Brooklyn, New York, marine life saving
and water sports equipment manufacturing plant, excluding office,
professional, and clerical employees, watchmen, guards, and super-
visors as defined In the Act.
[The Board dismissed the petition in Case No 2-RC-9094 ]
[Text of Direction of Election 4 omitted from publication ]
signed with the IBT, the IBT replied "No, if there was a picket line there " In other
words, It would appear that to remove the pickets , the Employer would have to sign with
both unions Although the IBT alone made the joint demand, we will not absolve the
MAWD from responsibility Its silent acquiescence was tantamount to an implied demand
by the MAWD which raises also, as to it, a question concerning representation We note
also, in this connection, that the New York State Supreme Court similarly found that
the two unions had demanded a "package deal whereby the [Employer ] would have to
sign up with" both unions
Although the picketing was subsequently enjoined on November 27, by the New York
Court and the injunction was affirmed on appeal , the MAWD continued financing the
truckdrivers , at least to the hearings herein an June 23, 1958, when it reiterated that it
had no interest in the Employer 's employees Such continued payments reflect conduct
inconsistent with unequivocal disclaimer Accordingly , we find that despite the injunction
against picketing, the MAWD is maintaining a present interest in the Employer's em-
ployees sufficient to warrant placing it on the ballot in the election directed herein
2 On August 20, 195T, the IBT petitioned in Case No 2-RC-9094 for a unit of truck-
drivers Subsequently , the Employer sold its trucks and contracted out all work previ-
ously done by drivers As the Employer no longer employs drivers , we find that the IBT
petition raises no question concerning representation and we shall dismiss it
8 The Employer and the Life Saving Equipment Employees Union, Inc , called the
LSEEU, the petitioner in Case No 2-RC 9144, substantially agree to the unit of produc-
tion and maintenance employees Contrary to the LSEEU, we shall not include truck-
drivers as the Employer no longer has such job category
As the jobs of the five truckdrivers were effectively abolished when the Employer
terminated its trucking operations and as the unfair labor practice charges relating
thereto were dismissed by the Regional Director , we find these former strikers are in-
eligible to vote in the election herein Meridian Plastics, Inc, 108 NLRB 203, at p 205
The pending appeal from the dismissal of the unfair labor practice charges will not affect
our direction of an immediate election McQeay, incorporated, 10T NLRB 787
Spencer Press Incorporated and Retail, Wholesale and Depart.
went Store Union , AFL-CIO, Chicago Joint Board, Petitioner.
Case No 13-RC--5749 September 8,1958
DECISION, DIRECTION, AND ORDER
On October 29, 1957, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
121 NLRB No 106
SPENCER PRESS INCORPORATED 785
direction and supervision of the Acting Regional Director for the
Thirteenth Region among the employees in the stipulated appropriate
unit. Following the election the Acting Regional Director served on
the parties a tally of ballots which showed that all of the approxi-
mately 168 eligible voters cast ballots of which 77 were for, and 69
were against, the Petitioner. There were also 22 challenged ballots.
As the challenged ballots were sufficient in number to affect the re-
sults of the election, the Acting Regional Director investigated them
and on July 23, 1958, issued and duly served upon the parties a report
on challenged ballots in which he recommended that 8 'challenges be
overruled, that a hearing be held to determine factual issues regarding
13 ballots and that no action be taken regarding 1 ballot because the
eligibility of this voter was being decided in a separate case (13-CA-
2868). The Employer and Petitioner filed timely exceptions to the
report.
The Board 1 has considered the stipulation of the parties, the Acting
Regional Director's report, the Employer's and the Petitioner's excep-
tions thereto, and the entire record in this case and hereby makes the
following findings :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer, as stipulated by the
parties, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All warehouse and office employees at the Employer's Chicago, Illi-
nois, warehouse, including clerical, production, shipping, receiving
and maintenance employees, elevator operators, and janitors, but ex-
cluding plant manager, assistant plant manager, personnel manager,
confidential secretaries, salesmen, guards, professional employees, de-
partment managers, and supervisors as defined in the Act.
5. The Petitioner challenged five voters, Bertha Brewton, Jeanne
Leaner, Lillian Simandl, Violet Woodall and Ophelia Webb, on the
ground that they were confidential employees. The Acting Regional
Director recommended that these challenges be overruled. The Em-
ployer concurred with this recommendation; the Petitioner took ex-
ception to it. The Acting Regional Director's investigation disclosed
1 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 [ Members Rodgers, Bean,
and Fanning].
487926-59-vol. 121-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that these employees act as secretaries, clerks, or bookkeepers to
various department heads, but that they do not "assist and act in a
confidential capacity to persons who formulate, determine, and effectu-
ate management policies in the field of labor relations" The B. F.
Goodrich Company, 115 NLRB 722, 724. We find they are not con-
fidential employees and overrule the challenges to their ballots.
The Board agent challenged the ballots of Eleanor Penny and
Delores Wenfrey because their names did not appear on the eligibility
list. The name of the former was inadvertently left off the eligibility,
list and all parties concerned agree that the challenge to her ballot
should be overruled. We hereby do so overrule it. As the status of
the latter is currently being decided in an unfair labor practice case
(Case No.. 13-CA-2868), we make no finding as to her voting eligi-
bility at this time.
The Petitioner challenged the ballot of August Thomas alleging
that he is a guard. As the Acting Regional Director's investigation
disclosed factual contradiction giving rise to a material and substan-
tial issue regarding the status of this employee, he recommended that
the Board direct a hearing to determine Thomas' eligibility. The
Employer excepted to. this recommendation contending that Thomas
clearly was not a guard as defined in the Act. The Petitioner acqui-
esced to the recommendation. We find that the issue should be
resolved at a hearing and will direct that one be held for this purpose.
Irene Cooke was employed as an IBM operator and instructor.
Although she is no longer employed her status has been challenged
by the Petitioner as being professional. She has had approximately
2 years of college, and some on-the-job training; all of which was
concerned with the operation of business machines. We find that she
is not a professional employee, and, affirming the recommendation of
the Acting Regional Director, overrule the Petitioner's challenge to
her ballot. Cf. Potomac Electric Power Company, 111 NLRB 553,
562. -
The Petitioner challenged the ballots of 13 individuals 2 contending
that they are supervisors and therefore ineligible to vote. The
Acting Regional Director found that Ray Malkowski works alone
and has no subordinates. He therefore recommended that the chal-
lenge to his ballot be overruled, on the ground that he is not a super-
visor. The Petitioner excepted to this recommendation, the Employer
concurred in it. We find that Ray Malkowski is not a supervisor and
affirm the Acting Regional Director's recommendation to overrule the
challenge to his ballot. The Acting Regional Director's report, the
2 Ennis Martin, Bozie Shine, Tillie Zelechower , Laura Frost , Ray Malkowski , Cordella
Smith , Frankye Mooney, Hettie Herman , Theresa Cannon, Helen Hallen , Mary Mims,
Gentry Scroggs , and Herman Thomas.
'SPENCER PRESS INCORPORATED 787
Employer's exceptions, and the Petitioner's concurrence therein raise
substantial and material issues of fact with respect to the supervisory
status of the remaining 12 individuals whose ballots have been chal-
lenged on that ground. These issues can best be resolved by a
hearing.
We shall direct that the eight ballots listed in Appendix A, the
challenges to which have been overruled, shall be opened and counted.
If these ballots are not determinative of the election, we shall order a
hearing to determine the eligibility of the 13 voters listed in
Appendix B.
[The Board directed that the Regional-Director for the Thirteenth
Region shall, within ten (10) days from the date of this decision,
open and count the ballots of the employees listed in Appendix A and
shall serve upon the parties a revised tally of ballots. If the revised
tally discloses that a majority of votes have been cast in favor of the
Petitioner, and it appears that the remaining unresolved challenges
cannot affect the results of the election the Regional Director shall
issue a Certification of Representatives. If, however, it appears that
the remaining unresolved challenges can affect the results of the elec-
tion the Regional Director is directed to proceed to hearing in
accordance with the following order.]
[The Board ordered that in the event the revised tally of ballots
indicates that the results of the election are not determinative, the
case is referred to the Regional Director for the Thirteenth Region
for hearing before a hearing officer to resolve the issues raised by the
challenges to the ballots of the employees listed in Appendix B.]
- [The Board further ordered that the hearing officer prepare and
serve upon the parties a report containing resolutions of credibility
of witnesses , findings of fact ,,and recommendations to the Board as
to the disposition of the challenged ballots. Within ten (10) days
from the date of the issuance of such report, any party may file with
the Board in Washington , D. C., an original and six copies of ex-
ceptions . Immediately upon filing of such exceptions , the party filing
the same shall serve a copy 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 hearing officer's recommendations.]
APPENDIX A
1. Bertha Brewton 5 . Eleanor Penny
2. Irene Cooke 6. Lillian Simandl
3. Jeanne Leaner 7. Ophelia Webb
4. Ray Malkowski 8. Violet Woodall
788 DECISIONS OF
1. Theresa Cannon
2. Laura Frost
3. Helen Hallen
4. Hettie Herman
5. Ennis Martin
6. Mary Mims
7. Frankye Mooney
NATIONAL LABOR RELATIONS BOARD
APPENDIX B
8. Gentry Scroggs
9. Bozie Shine
10. Cordelia Smith
11. August Thomas
12. Herman Thomas
13. Tillie Zelechower
Pyramid Mouldings , Inc. and United Steelworkers of Amerit&,
AFL-CIO, Petitioner. Case No. 13-RC-5915. September 8,1958
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On April 18, 1958, pursuant to a stipulation for certification upon
consent election, an election was conducted under the direction and
supervision of the Regional Director for the Thirteenth Region
among the employees in the agreed-upon unit. Following the elec-
tion, the Regional Director served upon the parties a tally of ballots
which showed that of approximately 159 eligible voters, 152 cast
ballots, of which 3 were for the Intervenor, the International Union,
United Industrial Workers of America; 62 were for the Petitioner,
the United Steelworkers of America, AFL-CIO ; and 87 were for no
labor organization. Three ballots were challenged, which are not
sufficient in number to affect the results of the election.
On April 21, 1958, the Petitioner filed timely objections to conduct
affecting the results of the election. After an investigation, the
Regional Director, on July 18, 1958, issued and duly served upon the
parties his report on objections, a copy of which is attached hereto.'
The Regional Director found that the Petitioner's objection No. 1 had
merit, and recommended therefore that the election be set aside, and a
new election conducted. He found that the Petitioner's objection No.
2 lacked merit, and recommended that it be overruled. The Employer
filed timely exception to the Regional Director's report regarding
objection No. 1.
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
i The report on objections sets forth in full the alleged objections.
121 NLRB No. 105.