107 N.L.R.B. 1090 (N.L.R.B. 1954)

American Cable & Radio Corp.

National Labor Relations Board - Board DecisionsFeb 5, 1954

107 N.L.R.B. 1090 (N.L.R.B. 1954)

1 090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the language of the statute is followed we avoid the inequitable results here portrayed which Congress could never have con- templated, but which are the necessary result of the inter- pretation of the statute made by the majority in the A & P and F. W. Woolworth cases. AMERICAN CABLE & RADIO CORPORATION and COMMU- NICATIONS WORKERS OF AMERICA, CIO, Petitioner. Case No. 2-RC-4670. February 5, 1954 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION Pursuant to a Decision and Direction of Election issued by the Board on December 31, 1952,1 a mail-ballot election was conducted under the direction and supervision of the Regional Director for the Second Region among the employees of the Employer in the unit found appropriate in the Decision to determine whether or not they desired to be represented for purposes of collective bargaining by Communications Workers of America, CIO, or by The Commercial Telegraphers Union, AFL, or by the American Communications Association, Inde- pendent, or by none. The tally of ballots served upon the parties on May 29, 1953, showed the following election results: 1. Approximate number of eligibles ................ 1,200 2. Void ballots (including 4 ballots ruled void: ruling challenged) ............................................ 24 3. Votes cast for ACA .................................. 258 4. Votes cast for CTU-AFL (including 2 votes challenged as void ) .......................................... 258 5. Votes cast for CWA-CIO (including 4 votes challenged as void) .......................................... 337 6. Votes cast against participating labor organizations .................................................. 41 7. Valid votes counted .................................. 894 8. Challenged ballots ( not including 6 ballots counted as valid but challenged as void) ............... 207 9. Valid votes counted plus challenged ballots... 1,101 As the challenged ballots were sufficient to affect the results of the election , the Regional Director , pursuant to Section 102.61 of the Board's Rules and Regulations, con- ducted an investigation of the challenged ballots. On July 31, 1953, the Acting Regional Director issued his report on chal- lenges . In his report, he stated that the Company and the unions 1101 NLRB 1759; amended 102 NLRB 877. 107 NLRB No. 230. AMERICAN CABLE & RADIO CORPORATION 1091 had withdrawn their challenges to certain of the ballots and recommended to the Board that the challenges to the ballots of the 30 employees listed in appendix A, attached hereto, be overruled and counted ; that the challenges to the ballots of the 56 employees listed in appendix B be upheld and their votes not counted ; that the Board agent ' s rulings as to the validity of certain ballots be sustained ; and that a hearing be held to secure information concerning the status and eligibility of the employees listed in appendixes C and D and to establish the authenticity of the 7 questionable signatures . On August 28 and September 1, 1953 , respectively , ACA and the Employer filed exceptions thereto. As no exception was taken to the Acting Regional Director's recommendations with respect to the challenges to the ballots of employees listed in appendix A, the Board adopted that recommendation , deferring the counting of ballots until a determination of the remaining challenges . In the absence of evidence submitted to rebut the presumed validity of the Acting Regional Director ' s recommendation based on his investigation of company records relating to employees listed in appendix B, the Board found no merit in the ACA' s excep- tion to that recommendation and adopted it. As the Acting Regional Director ' s report did not particularize the alleged improper ballot markings on the 4 challenged ballots which the Board agent had declared void , the Board ordered that the ballots challenged on the basis of the validity of their marking be forwarded to it for inspection . The authenticity of the 7 questionable signatures and the employment status and eligi- bility of the employees listed in appendixes C and D raised substantial and material issues of fact which the Board decided could best be resolved by further investigation . Accordingly, on October 16, 1953 , the Board issued an order , immaterially amended on October 28 , 1953, remanding the proceeding to the Regional Director for the Second Region for further investiga- tion and recommendations. Thereafter, the Regional Director , pursuant to the Board's direction and Section 102.61 of the Board ' s Rules and Regula- tions , completed the investigation of the challenged ballots. On December 10, 1953, the Regional Director issued a supple- mental report on challenges , recommending that the challenges to the ballots of the 40 employees listed in appendix C be up- held on the ground that their job classifications were not listed in appendixes 1 or 2 of the Board's Decision and Direction of Election , and that their votes not be counted . He also recom- mended that the challenges to the ballots of the 76 employees listed in appendix D, attached hereto , be overruled as investiga- tion revealed that they were, as the Employer conceded , eligible voters .' He further recommended that the challenges to the 2 In this connection, the Regional Director ruled that Eugene M. Ryan, Harold J. Frazer, and Albert W. Hart were employees , not supervisors. 1 092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballots in the envelopes signed by Frances Dunne , Nathan Bender, Milton Lightstone , A. Buffington , and F. J. Ackerman be overruled and their votes counted , their signatures having been verified by the investigation , but that the ballots in the envelopes signed Walter Farrar and D. Kerrigan were properly challenged and should not be counted. On December 15, 1953 , the CWA-CIO filed with the Regional Director for the Second Region objections to his supplemental report , which it also filed with the Board on December 21. On December 17 , 1953, CTU-AFL similarly filed objections to the report with the Regional Director . On December 20, 1952, ACA filed objections with the Board in Washington. On January 4, 1954, the Employer filed a reply to objections. The Board has considered the Regional Director ' s supple- mental report on challenged ballots, the various objections and briefs, and hereby adopts the findings and recommendations of the Regional Director , with the following additions: 1. The challenged rulings of the Board agent concerning the validity of ballots fall into 2 groups : ( a) his ruling , challenged by CWA-CIO, CTU-AFL, and ACA, that some 4 ballots, which clearly indicated the voters' intent to vote for the challenging union, were void because they showed signs of erasure; and (b) his ruling , challenged by ACA, that some 6 ballots on which marks appear in 2 boxes , were valid on the ground that one of the marks was intended by the voter and the other was merely a blot caused by the folding of the ballot . After carefully exam- ining each of these ballots , the Board is convinced that the voter's intent with respect to each ballot is clearly manifest. Under these circumstances , the Board holds that all ballots so challenged are valid and should be counted .3 2. The unions involved contend that certain job classifications of employees listed in appendix C are "live traffic" classifica- tions which should be included in the bargaining unit. The Board based its decision of December 31, 1952, on the evidence adduced at a formal hearing. No timely objections were made to the unit finding therein . The election was held pursuant to the Board ' s decision . Under these circumstances , we deem it irrelevant that the parties may have failed to adduce evidence relating to all "live traffic " job classifications . The Regional Director ' s undisputed determination that the employees listed in appendix C are employed in jobs not listed in the appendixes to the Board ' s Decision and Direction of Election suffices to establish that such employees are ineligible to vote and that the challenges to their ballots , on that ground , should be sus- tained. 3. In view of ACA's failure to advance any affirmative evidence to indicate that any of the Regional Director's findings 3See N. L R. B v Whitinsville Spinning Ring Company, 199 F. 2d 585 (C. A. 1), setting aside 93 NLRB 1291; 97 NLRB 801. AMERICAN CABLE & RADIO CORPORATION 1093 are contrary to fact, we shall deny its request for a hearing in this matter .4 [The Board denied ACA's request for a hearing and amended the tally of ballots to include the 4 challenged ballots ruled void by the Board agent and herein found valid.] [The Board directed that the Regional Director for the Second Region shall , pursuant to the National Labor Relations Board Rules and Regulations , within ten ( 10) days from the date of this Direction , open and count these ballots and serve upon the parties a supplemental tally of ballots , including therein the count of these challenged ballots.] 4 See Carter Publications , Inc., 107 NLRB No. 86. APPENDIX A Acker , Dorothy Chryssi, John Ciotti , Pasquale L. Carvalhe , Gladys Goo Cavanaugh , Michael W. Connell, Nicholas Cruichshank, R. H. Gazes, Angel Donohue, J. DeMott, William S. DesBarres, G. M. Eastwood , Joseph Fox, John L. Fox, John Glennon, Marie V. Hashimoto , Gladys Holyoak, A. L. Kalani, Louis N. Kaleikau , Annett Longobardi , George Lenhart, D. J. Monserat, R. J. Myette, Alphonse J. Miracco, William O'Malley, Michael J. Parker, Madeline Riggio, Salvatore E. Rodriguez, G. L. Strengrevics, John Schoeffle, S. C. APPENDIX D Alberigo, John Amato, Anthony Bauer, Aaron Benvenuto , Nicholas Breaux , Jr., Walter John Brecher , Isidore Brandes , William S. Bubb, Walter Calnek , Edward E. Carlisle, J. C. Cavanagh, Frank Cohen, Alfred Contini, Louis Dibe, Toufic, Jr. Donnelly , John Thomas Douglass , Howard S. Estrema, Louis Egan, Winifred A. Ehlers, Harry W. Fallman, Adolph Fayhee, John J. Fisher , Hazel I. Forrest, Howard J. Frazier , Harold J. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friedman, D. Gallagher, L. Gallo, E. Goldberg, H. Hart , Albert N. Henry, John* Horty, John M. Hughes, Robert Merton Jackel, C. Kezner, Jacob Kopeck, Chester Alexander Kozush, Carl Kuba, Richard Kuzemchak, Philip Lefkowitz, A. Lindsay, Robert A. McGrath, Thomas J. McHugh, Joseph P. Mirer, Michael Moore, M. Moreth, Carmela Murray, George V. Nash, Daniel Newton, Frank H. Noah, Stanley E. O'Connor, Timothy O'Donnell, J. P. Parysek, Charles Pascucci, Michael R. Pearson, Thelma Vera Platt, John A. Riccio , Charles Carmine Richman, Abe Ryan, Eugene M. Sammut, Fred Thomas Schmitz, Dorothy Scott, W. E. Shulman, Fred Silverstein , Irving Slaba, Joseph Smith , Reginald J. Stecko, David Stout , J. Victor Stout, Max Vernon Sullivan, Owen J. Urban, Louis Vanderhaas , W. J. L. Velez, Radames Walden, Nelli Jane Wise, G. A. Wright, H. R. Wust, Franz Aloyis * This ballot was inadvertently excluded at the time the tally of ballots was issued. SPOTSWOOD SPECIALTY COMPANY, INC. and INTERNA- TIONAL PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA, AFL, Petitioner. Case No. 9-RC- 1943. February 8, 1954 SUPPLEMENTAL DECISION, ORDER, AND SECOND DIRECTION OF ELECTION Pursuant to a Decision and Direction of Election issued herein on June 16, 1953,' an electionbysecretballotwas conducted on July 14, 1953, under the direction and supervision of the Re- gional Director for the Ninth Region, among employees in the unit found appropriate by the Board. Following the election, a tally of ballots was furnished the parties. The tally shows that of approximately 55 eligible voters, 52 cast ballots, of which 24 were for, and 28 were against , the Petitioner. On July 17, 1953, the Petitioner filed objections to conduct affecting the results of the election. The Regional Director 'Not reported in printed volumes of Board Decisions and Orders. 107 NLRB No. 222.