T & G Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1969

173 N.L.R.B. 1503 (N.L.R.B. 1969)

T & G MANUFACTURING, INC 1503
T & G Manufacturing , Inc. and International Union,
United Automobile , Aerospace , and Agricultural
Implement Workers of America (UAW). Case
7-RC-8954
January 7, 1969
DECISION, ORDER, AND DIRECTIONS
By MEMBERS FANNING, BROWN , AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted on June 10, 1968, under the direction and
supervision of the Regional Director for Region 7,
among the employees in the unit agreed upon by the
parties. At the conclusion of the election, the parties
were furnished with a tally of ballots which showed
that of approximately 25 eligible voters, 24 cast valid
ballots, of which 11 were for, and 8 were against
Petitioner, and 5 cast ballots which were challenged.
The challenged ballots were sufficient in number to
affect the results of the election. No objections were
filed to conduct affecting the results of the election.
On July 15, 1968, the Employer and the Petitioner
executed a Stipulation wherein they agreed that the
challenges to the ballots of Taipulas, Boettcher, and
Boksai should be sustained because they were not
eligible to vote, inasmuch as they were not employees
of the Employer during the payroll period of
eligibility. The parties stipulated that after Boettcher
was challenged at the election, he failed to place his
ballot in the challenged ballot envelope which was
furnished him by the Board agent conducting the
election, but rather, deposited his ballot into the
ballot box together with an empty challenged ballot
envelope. The parties further stipulated that
Boettcher's ballot was cast for the Petitioner and that
inasmuch as the challenge to his ballot should be
sustained, his ballot should not be counted. Accord-
ingly, pursuant to the stipulation of the parties, which
was approved by the Regional Director on July 15,
1968, the Regional Director issued a corrected tally
of ballots which showed 10 ballots cast for, and 8
ballots cast against the Petitioner , and 2 ballots
challenged by Petitioner . The remaining challenged
ballots were sufficient in number to affect the results
of the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure , Series 8, as amended , the Regional
Director conducted an investigation and, on July 19,
1968, issued a Notice of Hearing, ordering that a
hearing be held on July 29, 1968, in order to
determine the voting eligibility of Eugene Rossan and
Leo Miller.
On July 29, 1968, and August 1, 1968, a hearing
was held before Hearing Officer Stephen L. Schochet.
All parties to these proceedings were represented by
Counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
On September 12, 1968, the Hearing Officer issued
his Report and Recommendations on Challenged
Ballots in which he recommended that the Board
overrule the challenges to the ballots of Eugene
Rossan and Leo Miller and that their ballots be
opened and counted. Thereafter, the Petitioner filed
timely exceptions to the Hearing Officer's Report and
a supporting memorandum, and the Employer filed
an answering brief.
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 Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties agreed, and we find, the following
employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of the Act:
All production and maintenance employees of
the Employer's Oak Park, Michigan, plant, located
at 14861 West 11 Mile Road, including shipping
and receiving employees, truckdrivers, and plant
clerical employees, but excluding office clerical
employees , guards, professional employees , and all
supervisors as defined in the Act.
5. The Board has reviewed the rulings made by the
Hearing Officer 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 exceptions and briefs,
and hereby adopts the Hearing Officer's findings, and
his recommendation that the challenges to the two
above designated ballots be overruled. However, we
do not accept the stipulation of the parties, approved
by the Regional Director, that employee Boettcher's
challenged , but commingled ballot was cast for
Petitioner . Acceptance of such an agreement is not
consistent with the Board 's purpose of preserving the
secrecy of the ballot and providing sufficient
173 NLRB No. 231
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
safeguards to prevent possible abuses of the election
processes. A voter is not permitted to withdraw his
own ballot, once cast,' and we can not allow the
parties to do so. For, as the Board has previously
stated:2
... once a ballot, whether or not it has been
challenged, has been duly cast in an election, the
voter loses control over its disposition and may not
as a matter of right have it withdrawn.... To
permit withdrawals of ballots would in certain
cases . . place the finality of the election in the
hands of such voters. Moreover, countenance of
such a practice could conceivably open our elec-
tions to possible abuses since, once the election
results were known, pressures of various kinds
could be exerted upon voters to withdraw their
ballots to achieve a desired election result.
The context of the proposed withdrawal in the
instant case is even more compelling than that in the
cited case, where the challenged ballots involved were
segregated in envelopes and there could be no
question of how each was marked. Here the ballot
itself is not identifiable and the choice has been
recorded in the tally of votes. There is no way of
ascertaining with certainty how the vote was cast. We
will not permit solicitation of such information from
the voter, nor allow the parties to stipulate how a
voter exercised his franchise, for this would create the
very opportunity for collusion, coercion, and election
abuse the Board is committed to prevent.
Accordingly, we shall direct the Regional Director
to reinstate the original tally of ballots which showed
11 ballots cast for, and 8 cast against Petitioner. We
shall further direct the Regional Director to open and
count the ballots of Rossan and Miller and serve on
the parties a revised tally of ballots. If one vote then
proves determinative, the election shall be set aside
and a new election directed. If one vote is not
determinative, a certification of representative shall
issue.
DIRECTION
It is hereby directed that, as part of his investi-
gation to ascertain the representative for purposes of
collective bargaining with the Employer, the Regional
Director for Region 7 shall, pursuant to the Board's
Rules and Regulations, within 10 days from the date
of this Direction, reinstate the original tally of ballots,
open and count the ballots cast by Eugene Rossan
and Leo Miller, and thereafter prepare and serve on
the parties a revised tally of ballots including therein
the count of the above-mentioned ballots. If,
according to the revised tally of the ballots, a single
vote is not determinative of the results of the
election, the Regional Director is directed to issue a
certification of representative to the Petitioner. If,
however, according to the revised tally of ballots, a
single vote is determinative, the following Order and
Direction of Second Election shall be applicable.
ORDER
It is hereby ordered that the election conducted
herein on June 10, 1968, among the employees of T
& G Manufacturing, Inc., at its Oak Park, Michigan,
plant, be, and it hereby is, set aside.
[DIRECTION OF SECOND ELECTIONS omitted
from publication.]
1 Great Eastern Color Lithographic Corp., 131 NLRB 1139.
2 Id.
3 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 7 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director. The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances . Failure to comply with
this requirement shall be grounds for setting aside the election whenever
proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
*U.S. GOVERNMENT PRINTING OFFICE 1971 0-380-674