Active Sportswear Co., Inc.

National Labor Relations Board - Board Decisions

May 19, 1953

104 N.L.R.B. 1057 (N.L.R.B. 1953)

ACTIVE SPORTSWEAR CO., INC. 1057
money equal to the amount she would normally have earned as wages from September 5,
1952, to the date of offer of reinstatement, less her net earnings during that period. Back
pay shall be computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. It will also be recommended that Respondents upon
reasonable request make all pertinent records available to the Board or its agents for the
computation of the amount of back pay due.
Because of Respondents' demonstration of their willingness to resort to unlawful methods
to counteract a supposed attempt by employees to achieve self-organization , it will be recom-
mended that Respondents cease and desist from infringing in any manner upon rights guaran-
teed employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case. I
make the following-
CONCLUSIONS OF LAW
1 Los Angeles Dress Joint Board, International Ladies Garment Workers Union, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of Antoinette Ullo because of her
supposed activities in behalf of the Union, the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by instructing its forelady to be on the alert for applicants
for employment who are members of the Union , Respondents have engaged in and are en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
ACTIVE SPORTSWEAR CO., INC. and MARY LYONS, Peti-
tioner and LOCAL 75, INTERNATIONAL LADIES' GARMENT
WORKERS' UNION, AFL, Case No. 1 -RD-123. May 19, 1953
SUPPLEMENTAL DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
On March 3, 1953, under the direction and supervision of
the Regional Director for the First Region, an election by
secret ballot was conducted pursuant to a Decision and Direc-
tion of Election issued in this matter on February 13, 1953.1
The Direction of Election defined the eligibility period as
"the payroll period immediately preceding the date of this
Direction of Election," and the official election notice defined
it as "the payroll period immediately preceding February 13,
1953." However, on the day of the election the Regional Di-
rector's agent erroneously advised that the payroll of Feb-
ruary 13, 1953, should be used to determine the eligible voters.
As a result of this change in payrolls an employee, ineligible
to vote under the criteria established by the Board, became
eligible and was permitted to vote. The tally of ballots
furnished the parties at the conclusion of the election shows
that of approximately 49 eligible voters, 22 voted for the
Union, 22 against the Union, 3 cast void ballots, and 1 ballot
was challenged. No party filed objections to the conduct of
the election or conduct affecting the results of the election
1102 NLRB 1396.
104 NLRB No. 138.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the time permitted by Section 102.61 of the Rules and
Regulations of the Board.
Thereafter, on March 12, 1953, the Regional Director issued
and served upon the parties his report on the ballot challenged
by the Employer and the Union recommending that it be opened
and counted. On March 25, 1953, the Petitioner untimely filed2
an "Exception to Challenged Ballot and Election." This docu-
ment raised for the first time, along with other contentions,
the question of the use of an erroneous payroll and the
ineligible vote that was cast as a result thereof. Whereupon,
the Regional Director further investigated the matter and on
April 13, 1953, issued a supplemental report on challenged
ballot, recommending that the election be set aside and the
Board direct a new election so that "the integrity of the
Board's processes would best be served." Thereafter, on
April 23, 1953, the Union filed its exceptions to supplementary
report on challenged ballot raising exceptions which, for the
reason stated hereafter, the Board finds unnecessary to
consider.
The Board is responsible for assuring properly conducted
elections. Where, as here, an allegation of irregularity con-
cerning an essential condition of an election is made, the
Board will, on its own motion, consider such allegation.' As
one of the conditions of the election directed in this matter was
that a certain payroll period be used to determine the eligibility
of employees to vote, and as a different payroll period was
used, an essential element of a properly conducted election
was absent. Furthermore, the irregularity resulted in the
inclusion of an ineligible ballot sufficient to affect the outcome
of the election. The Board is therefore constrained to set the
election aside and direct that a new election be held.
ORDER
IT IS HEREBY ORDERED that the election held on March 3,
1953, among employees of the Employer at its Worchester,
Massachusetts, plant, be, and it hereby is, vacated and set
aside.
[Text of Second Direction of Election omitted from publica-
tion.]
Chairman Herzog and Member Murdock took no part in the
consideration of the above Supplemental Decision, Order, and
Second Direction of Election.
2Section 102.61 of the Rules and Regulations of the Board directs that exceptions to the
Regional Director's report be filed with the Board in Washington , D. C., within ten (10)
days after the issuance of that report.
$Cf. Edward J. Schlachter Meat Co., Inc., 100 NLRB 1295, and cases cited therein; Gen-
eral Shoe Corporation, 77 NLRB 124.