Fitzpatrick and Weller, Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1952

98 N.L.R.B. 1192 (N.L.R.B. 1952)

1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facilities. Therefore, we find that the Auburndale employees may, if
they wish, join the existing unit of Tampa employees currently repre-
sented by the Intervenor.2
Accordingly, we shall make no final unit determination at this time,
but shall first ascertain the desire of the Auburndale employees as
expressed in the election to be directed herein, in the following voting
group :
All employees at the Employer's Auburndale, Florida, warehouse,
excluding office-clerical employees, professional and administrative
employees, guards, and all supervisors as defined in the Act.
If a majority vote for the Petitioner, they will be taken to have
indicated their desire to constitute a separate appropriate unit, and
the Regional Director conducting the election directed herein is in-
structed to issue a certification of representatives to the Petitioner for
the unit described in paragraph numbered 4, which the Board, under
such circumstances, finds to be appropriate for purposes of collective
bargaining. If a majority vote for the Intervenor, the organization
may bargain for such employees as part of the Tampa production,
maintenance, and warehouse unit that it now represents, and the
Regional Director will issue a certificate of results of election to such
effect.
[Text of Direction of Election omitted from publication in this
volume.]
2 Thatcher Glass Manufacturing Company, 97 NLRB 238.
FITZPATRICK AND WELLER, INC. and UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, AFL , PETITIONER. Case No.
3-RC-814. A pril 15, 1950
Supplemental Decision and Direction
On February 25, 1952, pursuant to a Decision and Direction of
Election issued by the Board,' an election by secret ballot was con-
ducted under the direction and supervision of the Regional Director
for the Third Region among the employees in the appropriate unit.
Upon completion of the election, a tally of ballots was issued and duly
served upon the parties, which showed that of the 94 ballots cast, 47
were for and 26 against the Petitioner, 20 were challenged, and 1 was
void.
On February 29, 1952, the Employer filed timely objections to
election. Thereafter, the Regional Director conducted an investiga-
tion and, on March 21, 1952, issued and duly served upon the parties
1 Not reported in printed volumes of Board decisions.
98 NLRB No. 177.
FITZPATRICK AND WELLER, INC. 1193
a report on'challenged ballots and objections to election. On March
31, 1952, the Employer filed exceptions to report on challenged ballots
and objections to elections.
In his report, the Regional Director stated that 14 of the challenged
ballots were cast by individuals whom the Petitioner challenged on
the basis that they were independent contractors. These individuals
were listed on the eligibility list prepared by the Employer as loggers.
The Petitioner at the hearing had sought to exclude loggers but did
not advance as one of its grounds for such exclusion the contention
that they were independent contractors. The Employer maintained
at the hearing that the loggers should be included, and the Board so
found. Under these circumstances, the Regional Director recom-
mended that the challenges to these 14 ballots be overruled and the
ballots counted. In the absence of any exceptions by the Petitioner,
we 2 hereby adopt this recommendation of the Regional Director, and
shall direct that the ballots of the 14 employees listed in Schedule A
be opened and counted.
Over the Employer's objection, a ballot bearing the word "yes"
written in pencil to the right of the box in addition to the "X" mark
inside the box was counted in favor of the Petitioner. The Regional
Director stated in his report that he would not pass upon the Em-
ployees objection to this ballot in view of the possibility that the
opening of the 14 challenged ballots might be determinative. The
Employer has excepted to the Regional Director's failure to dispose
of this matter prior to any further proceedings. We agree with the
Regional Director, and shall likewise make no determination as to
the validity of this ballot unless and until it becomes determinative.
The Employer has taken exception to the Regional Director's rul-
ings that the Employer's attorney and the Employer's son were in-
eligible to serve as observers at the election, and to the Regional
Director's refusal to count the names of the voters checked off the
payroll list by the observers for the Employer and the Petitioner in
order that the Employer might be able to determine whether or not
any voter had cast more than one ballot. The Regional Director's
action in prohibiting the two individuals in question from acting as
observers was clearly in accord with Board policy.8 As to the refusal
to count the names of the voters, this is a matter relating to the con-
duct of an election which is within the control and discretion of the
Regional Director, and there is no indication that the Regional
Director abused his discretion in this matter. We find therefore, that
these exceptions are without merit.
2Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Styles).
3 See Peabody Engineering Company, 95 NLRB 952 and cases cited therein.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Direction
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with the Employer, the Regional
Director for the Third Region shall, pursuant to National Labor
Relations Board Rules and Regulations, within ten (10) days from
the date of this Direction, open and count the ballots of the employees
listed in Appendix A, and shall thereafter prepare and cause to be
served upon the parties a supplemental report on challenged ballots.
Appendix
Paul Betz
Dale Carley
Adam Distler
Frank Ebert, Jr.
George Hinman
Lester Hinman
Philander Kuhaneck
Clarence Little
William Marsh
Louis Pasa
Joseph Stritoff
Michael Tomsic
Ernest Wilson
John Woodard
UNIVERSITY METAL PRODUCTS CO., INC . and AMERICAN FEDERATION
OF LABOR, PETITIONER . Case No. 1-RC-e553. April 15, 195,-
Supplemental Decision and Certification of Representatives
Pursuant to a Decision and Direction of Election issued on Febru-
ary 8, 1952,1 in the above-entitled matter, an election by secret ballot
was conducted on February 29, 1952, under the direction and super-
vision of the Regional Director for the First Region. Thereafter, the
parties were furnished with a tally of ballots, which shows that of
approximately 25 eligible voters, 23 cast ballots, of which 17 were for,
and 6 against, the Petitioner.
On March 7, 1952, the Employer filed timely objections to the elec-
tion, alleging, in substance, (1) that the Regional Director arbitrarily
denied its request to schedule the election for a certain day within the
prescribed 30-day period at which time and prior thereto counsel of
its choice would be available for advice; and (2) that it was required
to resort to unpublished procedures in violation of Section 3 (a) of
the Administrative Procedure Act. Thereafter, the Regional Director
investigated the objections and on March 14, 1952, issued and duly
served on the parties a report on objections in which he found no
merit in the said objections and recommended that they be overruled.
The Employer then filed exceptions to the Regional Director's report.
1 Unpublished.
98 NLRB No. 178.