S.W. Evans & Son

National Labor Relations Board - Board Decisions

Jan 14, 1948

75 N.L.R.B. 811 (N.L.R.B. 1948)

In the Matter of S . W. EVANS & SON, EMPLOYER and AMERICAN FED-
ERATION OF LABOR, PETITIONER
Case No.4-R-2579.Decided January 14,1948
Messrs. Geoffrey J. Cunniff and John Harper, of Philadelphia, Pa.
for the Employer.
Mr. Ralph E. Schmidt, of Philadelphia , Pa., for the Petitioner.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Upon a petition duly filed, the National Labor Relations Board,
on April 30, 1947, conducted a prehearing election among employees
of the Employer in the alleged appropriate unit to determine whether
or not they desired to be represented by the Petitioner for the pur-
poses of collective bargaining.
At the close of the election a Tally of Ballots was furnished the
parties. The Tally shows that there were approximately 307 eligible
voters 1 and that 82 ballots were cast, of which 54 were for the Peti-
tioner, 1 was against the Petitioner, and 27 were challenged 2
Thereafter, a hearing was held at Philadelphia, Pennsylvania, on
June 25, 1947, before John H. Dorsey, hearing officer. The hearing
officer's rulings made at the hearing are free from prejudicial error and
are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
I The number of eligible voters shown on the Tally of Ballots corresponds to the total
number of employees appearing on the pay roll of March 29, 1947, which was furnished
the Board. However, the record discloses that between March 29 and April 30, 1947, the
date of the election , 113 of the listed employees were "permanently terminated," and that
18 additional employees on the list were supervisors and ineligible to vote. Accordingly,
there were, in fact, approximately 176 eligible voters at the time of the election.
2 Of these challenged ballots, the parties stipulated as to 25 of them. In accordance with
their agreement , we find that 24 of the challenged ballots were cast by "peimanently ter-
minated" employees who were ineligible to vote, and that one was cast by an eligible voter.
We shall , therefore, sustain the challenges to the ballots of the 24 terminated employees
and overrule the challenge to the other ballot. The remaining 2 challenged ballots were
cast by S Morrow, whom the parties agreed at the hearing to exclude as a supervisor, and
J. Graeber , whom we find herein to be an eligible voter. We shall, therefore , sustain the
challenge to the ballot of S Morrow and overrule the challenge to the ballot of J. Graeber.
75 N. L. R. B., No. 101.
811
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
S. W. Evans & Son, a Pennsylvania corporation, is engaged in
electro-plating and in the manufacture of umbrella frames at its plant
in Philadelphia, Pennsylvania. The Employer annually purchases
for use at this plant raw materials valued in excess of $100,000, of
which approximately 50 percent represents shipments from points out-
side the Commonwealth of Pennsylvania. During a similar period
the Employer manufactures finished products valued in excess of
$100,000, of which approximately 50 percent represents shipments to
points outside the Commonwealth.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization claiming to represent em-
ployees of the Employer.3
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all production and maintenance
employees of the Employer at its Philadelphia, Pennsylvania, plant,
including the truck driver, the guard, and watchmen, but excluding
factory and office clericals, foremen,' and all other supervisors. The
sole disagreement between the parties relates to one J. Graeber, whom
the Employer would exclude from the unit as a supervisor. There is
also some question as to the disposition to be made of the guard and
the watchmen.
J. Graeber. The Employer's shipping operations are handled by
two employees, S. Morrow and J. Graeber, whose ballots were chal-
lenged at the election. As already noted, the parties agreed at the
hearing that Morrow had supervisory status but were unable to agree
3 This finding is in no wise inconsistent with the Board majority 's holding in Matter of
Northern Virginia Broadcasters, Inc, 75 N. L. R . B. 11, that the American Federation of
Labor is not a "national or international labor organization " for the purposes of section 9
( f), (g), and ( h) of the amended Act.
S. W. EVANS & SON 813
as to the disposition to be made of Graeber. Although the Employer
contended that the two employees are indistinguishable as to status,
the record shows that Graeber is listed on the pay roll of March 29,
1947, as "receiver, shipper, helper"; is now the only employee in the
shipping department other than S. Morrow; and that there are no
employees under his supervision. We therefore find that Graeber
is not a supervisor and we will include him in the unit hereinafter
found appropriate.
The guard and watchmen. The Employer's one guard is stationed
at the plant gate during the day when the plant is in operation. He
opens and closes the gate to admit vehicles, checks employees entering
and leaving the plant, and has the authority to evict "boisterous" em-
ployees and to inspect packages carried in or out of the plant by
employees. The Employer also has four watchmen who are assigned
either to the 5 p. in. to midnight shift or the midnight to 7 a. in. shift.
Their primary function is to make the rounds of the plant, punching
clocks. In addition the watchmen fire the boilers and keep the steam
pressure up. Like the guard, the four watchmen are neither armed,
deputized, nor uniformed. However, inasmuch as both the guard and
the watchmen perform plant-protection duties, we shall exclude them
from the unit hereinafter found appropriate, in accordance with the
terms of Section 9 (b) of the amended Act.
We find that all production and maintenance employees of the Em-
ployer at its Philadelphia, Pennsylvania, plant, including the receiver-
shipper-helper and the truck driver, but excluding the guard, watch-
men, factory and office clericals, foremen and all other supervisors,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
At the hearing, the Employer moved to dismiss the petition. It
contended that the election should be set aside because the vote was not
representative and because the proceeding itself was invalid. As
already noted, the record discloses that 57 eligible employees of the
approximately 176 eligible voters in the unit, voted at the election. , It
is unfortunate that a more substantial number of those eligible to vote
did not see fit to exercise the franchise granted them under the Act.
However, it is a well-established principle that in the conduct of a
democratic election, where adequate opportunity to participate in the
balloting is provided all those eligible to vote, the decision of the ma-
jority actually voting is binding on all. The indifference or neglect of
those failing to exercise the right given them by law should not be
permitted to invalidate an otherwise properly conducted election.'
'Matter of A. A . Pagan, et at., 73 N. L. R. B. 680; Matter of A. L. Mechling Barge Lines,
69 N. L . R. B. 838, and Matter of Stiefet Construction Corporation , 65 N. L. R. B. 925.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently, and because we find no merit in the other contentions
addressed to the validity of this proceeding,5 we hereby deny the
motion to dismiss.
Inasmuch as the Tally shows that a majority of the valid votes
counted have been cast for the Petitioner, and because the two ballots,
challenges to which we have overruled, are insufficient to affect the
results of the balloting, we shall certify the Petitioner as the collective
bargaining representative of the employees in the unit heretofore found
appropriate.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that American Federation of Labor has been
designated and selected by a majority of all production and mainte-
nance employees of S. W. Evans & Son, at its plant in Philadelphia,
Pennsylvania, including the receiver-shipper-helper, and the truck
driver, but excluding the guard, watchmen, factory and office clericals,
foremen and all other supervisors, as their representative for the pur-
poses of collective bargaining, and that, pursuant to Section 9 (a) of
the Act, as amended, the said organization is the exclusive representa-
tive of all such employees for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other
conditions of employment.
5 Matter of Lehigh River Malls, Inc., 75 N. L. R B 280.