Bear Creek Orchards

National Labor Relations Board - Board Decisions

Jun 9, 1950

90 N.L.R.B. 286 (N.L.R.B. 1950)

In the Matter of BEAR CREEK ORCHARDS, EMPLOYER and TEAMSTERS,
CANNERY AND FRUIT PACKING WORKERS LOCAL 962-A, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL, PETITIONER
Case No. 36-RC-286
SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTION
Jrane 9, 1950
Pursuant to a Decision and Direction of Elections I issued herein on
December 29, 1949, an election by secret ballot among the employees
of Bear Creek Orchards was conducted under the direction and super-
vision-of the Regional Director for the Nineteenth Region. Upon
conclusion of the balloting, a tally of ballots was issued and served
upon the parties hereto, in accordance with the Rules and Regulations
of the Board.
The tally shows that of approximately 138 eligible voters, 137 cast
valid ballots. of which 41 votes were cast for the Petitioner, 57 were
against the Petitioner, and 39 were challenged. On February 1, 1950,
the Petitioner protested the conduct of the election, filing detailed
objections to the conduct of the election. After an investigation, the
Regional Director issued a consolidated report on objections and
challenges. Thereafter both the Employer and the Petitioner filed
exceptions to the Report.
The Petitioner objected to the conduct of the election and moved
that it be set aside on the ground, among others, that the use of a list
of names of employees, which it had prepared in order that its ob-
server at the election might use it for challenges, was denied them.
Investigation by the Regional Director revealed that during a con-
ference with a Board agent prior to the opening of the polls, Peti-
tioner's representative inquired as to whether its observer might use a
187 NLRB 1348.
90 NLRB No. 44.
286
BEAR CREEK ORCHARDS 287
list during. the voting. The election examiner. advised that no list
would be permitted other than the Company's voting list. We concur
with the Regional Director's finding that the action of the election
examiner was erroneous insofar as it constituted a ruling that the
Petitioner might not retain, for its own use at the polls, 'a list of
prospective voters whose ballots it wished to challenge. By this rul-
ing the Petitioner's observer was denied full opportunity to enter
challenges to such ballots. In such circumstances, we shall not at-
tempt to determine what might have been the effect upon the election
if the Petitioner had been accorded full opportunity to challenge
the ballots of voters it believed to be ineligible.' In order to accord to
all parties the opportunity freely to exercise their privilege of chal-
lenge at the polls, we shall set aside the election of January 26, 1950,
among the employees of Bear Creek Orchards, and shall direct that
a new election be held.3
ORDER
IT is HEREBY ORDERED that the election of January 26, 1950, con-
ducted among the employees of Bear Creek Orchards, Medford,
Oregon, be, and it hereby is, set aside.
SECOND DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election
by secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Second Direction, under the direc-
tion and supervision of the Regional Director for the Region in which
this case was heard, and subject to Sections 203.61 and 203.62 of
National Labor Relations Board Rules and Regulations, among the
employees in the unit found appropriate in the original Decision and
Direction of Elections herein, who were employed during the pay-
roll period immediately preceding the date of issuance of this
Second Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
2 The Regional Director found, inter alia, that among the persons on the Petitioner's
challenge list, 30 cast ballots, of which only 4 were challenged, and that, among the
remaining 26 who cast unchallenged ballots, 14 were in fact ineligible to vote. We shall
not, at this time, attempt to determine whether those upon the Petitioner's challenge list
may or may not have been eligible to vote. Likewise, as we have decided that the election
of January 26, 1950, should be set aside for the reason stated above, we find it unnecessary
to determine the validity of the actual challenges to ballots at this election.
' See F. N. Joslin Co., 79 NLRB 1049.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented for purposes of collective bargain-
ing, by Teamsters, Cannery and Fruit Packing Workers Local 962-A,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL.
MEMBERS HOUSTON and MURDOCK took no part in the consideration
of the above Supplemental Decision and Second Direction of Election.