The Gemex Corp.

National Labor Relations Board - Board Decisions

Mar 18, 1957

117 N.L.R.B. 656 (N.L.R.B. 1957)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives in Case No . 1-RC--4794 for a unit of all employees of the
Employer, including truckdrivers . Thereafter , on February 4, 1957,
the Regional Director for the First Region approved a stipulation
for certification upon consent election entered into by the parties.
In accordance with the stipulation , an election was conducted by the
Regional Director on February 21, 1957. On March 4, 1957, the
Regional Director issued a certification of representatives to Oil,
Chemical and Atomic Workers International Union, AFL-CIO.
On February 15, 1957, Local 251, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO, filed a petition for certification of representatives in Case
No. 1-RC-4826, seeking a unit of all truckdrivers , requested the right
to intervene in the petition filed in Case No. 1RC-4794, and submitted
a timely showing of interest in support thereof . By letter dated Feb-
ruary 19, 1957 , the Regional Director dismissed the petition filed in
Case No. 1-RC-4826, and on February 27, 1957, Local 251 filed an
appeal from the dismissal.
The Board having duly considered the matter,
IT IS HEREBY ORDERED that the certification of representatives issued
in Case No. 1-RC-4794 be, and it hereby is, revoked , and the election
held on February 21,1957, set aside.
IT IS FURTHER ORDERED that the Regional Director 's dismissal of the
petition for certification of representatives in Case No. 1-RC-4826
be, and it hereby is, reversed ; and the case is hereby remanded to the
Regional Director for further proceedings consistent with the fore-
going action.
By direction of the Board :
GEORGE A. LEFT,
Assistant Executive Secretary.
The Gemex Corporation and Local 50, International Jewelry
Workers Union, AFL-CIO, Petitioner. Case No. 2-RC-8.137.
March 18,1957
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a sipulation for certification upon consent election exe-
cuted October 19, 1956, an election by secret ballot was conducted on
December 11, 1956, among the employees in the stipulated unit, under
the direction and supervision of the Regional Director for the Second
Region. Following the election, the parties were furnished a tally
of ballots which showed that of approximately 400 eligible voters,
368 cast ballots, 180 cast votes for the Petitioner, 183 cast votes against
the Petitioner, 1 was void, and 4 were challenged. On December 14,
117 NLRB No. 100.
THE GEMEX CORPORATION 657
1956, the Employer filed timely objections on the ground that the
ballot listed as void on the tally should have been counted as a "No"
vote. As the challenged ballots were sufficient in number to affect
the results of the election, the Regional Director caused an investiga-
tion to be made of the objections and the challenged ballots. On
January 4, 1957, the Regional Director issued his report, overruling
.the Employer's objection on the void ballot, sustaining the challenges
to the four ballots, and recommending that the Petitioner be declared
not the exclusive bargaining representative. The Petitioner filed
,timely exceptions to the Regional Director's report, and the Employer
filed a brief in support thereof.
Upon the basis of the entire record in this case, the Board finds the
following :
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.
Objections
The Employer objected to the tally of ballots on the ground that one
ballot was marked "void." Examination of this ballot showed that
the voter made a check in the "Yes" box and a cross (X) in the "No"
box. The Regional Director found that, as the intent of the voter
was ambiguous, the ballot was properly counted as void. As no
'exceptions were taken to this finding, we adopt the Regional Di-
rector's recommendation that the objection be overruled.
Challenges
The ballot of John Fedack was challenged by the Board agent on
the ground that his name was not on the eligibility list. The investiga-
tion revealed that Fedack is in sole charge of a group of 18 power-
press operators, that he assigns the latter to various machines and
jobs according to his judgment and the men's capabilities, and that he
effectively recommends transfer or discharge of employees in his
section. On the basis of the above, the Regional Director found that
Fedack is a supervisor. The Petitioner excepts to the finding, but
offers no evidence to support the contention that Fedack is not a super-
visor. We therefore adopt the Regional Director's recommendal ion
that the challenge be sustained.
The ballots of two female emmployees, Marino and Vedova, were
challenged by the Board went because their names were not on the
:eligibility list. The investigation revealed. that these individuals
422 784-5 7-vol 117--43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were employed during the week ending October 14, 1956, the eligibility
date, but that both had been discharged for cause prior to the election,
that both were discharged because their production was below stand-
ard, and that they were among a group of 17 employees who were
removed from the payroll at the same time. The Regional Director
found that in view of the fact no unfair labor practice charges had
been filed on behalf of these two employees and because there was in-
sufficient evidence upon which to base an assumption that they were
temporarily laid off rather than discharged, the challenges should be
sustained
The Petitioner urges that had the Employer discharged Marino
and Vedova for cause and if it had so indicated on their termination
slips, the employees would not have received unemployment compen-
sation as provided by New Jersey statutes; furthermore that as the
employees received their unemployment compensation, they should be
held to have been laid off. We find no merit in this contention. Un-
employment compensation granted under State law is not determina-
tive of eligibility where there is no further evidence adduced to refute
the Employer's contention that these employees had been discharged.
The Ambiguous Ballot
The fourth ballot was challenged during the counting because of
ambiguous marking. This ballot did not contain any pencil marking
but appeared to have had a cross (X) faintly scratched into the paper
in the "Yes" box as if made by a pencil with a broken point. The
Regional Director found that it cannot be conclusively determined
that the voter intended to make an X in the "Yes" ballot rather than
to leave it blank. He therefore recommended that the ballot be
counted "void."
The Petitioner urges that on the basis of the Regional Director's
report, the faintly scratched X indicates that the voter intended to
mark the "Yes" box. We find no necessity for passing on this ques-
tion, as it is clear that even if the ballot should be counted for the
Petitioner, the latter would not have obtained a majority of the valid
votes.
Having found the Employer's objection and the challenges without
merit, we hereby overrule the objection and sustain the challenges as
recommended by the Regional Director. As the Union failed to re-
ceive a majority of the valid ballots cast in the election, we shall certify
the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for Local 50, International Jewelry Workers Union, AFL-CIO,
and that said organization is not the exclusive representative of the
Employer's employees in the appropriate unit.]