Choc-ola Bottlers, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1247 (N.L.R.B. 1971)

CHOC-OLA BOTTLERS, INC.
Choc-ola Bottlers, Inc. and Retail , Wholesale and De-
partment Store Union, AFL-CIO, Petitioner. Case
25-RC-4557
August 27, 1971
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING, BROWN, AND JENKINS
Pursuant to a Petition filed on January 22, 1971,
and a Stipulation for Certification Upon Consent
Election approved by the Regional Director for
Region 25, an election by secret ballot was conduct-
ed on February 19, 1971, under the direction and
supervision of the Regional Director among the
employees in the appropriate unit. At the conclusion
of the election, the parties were furnished with a tally
of ballots which showed that of approximately 13
eligible voters, 13 cast ballots, of which 6 were for,
and 6 against, the Petitioner, and there was 1
challenged ballot. The challenged ballot was suffi-
cient in number to affect the results of the election.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation
and, on April 30, 1971, issued and duly served on the
parties his Report on Challenged Ballot in which he
recommended that the challenge to the ballot of
William E. Viles be sustained, and that a certificate
of results be issued. Thereafter, the Petitioner filed
timely exceptions to the Regional Director's report
and a supporting brief. The Employer filed an
answering brief.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) 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 concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
r Greenspan Engraving Corp., 137 NLRB 1308; Gulf States Asphalt
Company, 106 NLRB 1212; Reade Manufacturing Company, Inc., 100
NLRB 87 ; Bill Heat& Inc., 89 NLRB 1555. In applying this standard, we
have held that an employee employed on the date of the election is
eligible to vote despite any intention to quit after the election . Personal
Products Corporation, 114 NLRB 959; Whiting Corporation, 99 NLRB 117.
1247
following employees constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees of the
Employer at its Indianapolis, Indiana, plant
including truckdrivers, but excluding all office
clerical employees, salesmen , professional em-
ployees and all guards and supervisors as defined
in the Act.
5. The Board has considered the Regional Direc-
tor's report, the exceptions thereto, the briefs of the
parties, and the entire record in this case, and finds
merit in the Petitioner's exceptions for the reasons
discussed below:
The Regional Director's investigation disclosed
that the Employer's observer challenged Viles when
he came to the polls to vote. The observer claimed
that before the polls opened the Employer instructed
him to challenge Viles because Viles had been
discharged earlier in the day. On these facts, the
Regional Director concluded that Viles was in fact
discharged before the start of the election and
therefore ineligible to vote since he was not an
employee at the time the election was in progress. We
disagree.
It has long been recognized that an employee is
eligible to vote in a Board election if he was
employed during the eligibility payroll period and on
the date of the election.' These requirements have
been satisfied in the present case . Accordingly, we
find that William E. Viles was eligible to vote in the
election and that his ballot should be opened and
counted.
DIRECTION
As part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with
Choc-Ola Bottlers, Inc., Indianapolis , Indiana, it is
hereby directed that the Regional Director for
Region 25 shall , pursuant to the Rules and Regula-
tions of the Board, within 10 days from the date of
this Direction , open and count the challenged ballot
of William E. Viles , and thereafter prepare and cause
to be served upon the parties a revised tally of
ballots, including therein the count of the challenged
ballot.
Furthermore , in an analagous situation, the Board held in Was Texas
Equipment Company, 142 NLRB 1358, that employer conduct occurring
on the day the representation petition was filed , although prior to the
time of the filing, took place within the critical period. Therefore, in
identifying the beginning of the critical period , we refused to fractionalize
the day that the petition was filed.
192 NLRB No. 182