Great Eastern Color Lithographic Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1961

131 N.L.R.B. 1139 (N.L.R.B. 1961)

GREAT EASTERN COLOR LITHOGRAPHIC CORP. 1139
Par. F-The Foreman and steward shall call the District Council office immedi-
ately in case of any labor or jurisdictional dispute on the job.
Par. G-Any carpenter foreman or other member in this District who employs
or works carpenters without a working card or bona fide permit of this District shall
be fined for the first offense, and for the second offense he shall be ruled off the job
for the duration of the job [Emphasis supplied.]
Par. I-If a contractor intends to lay off a foreman in this district he shall notify
the District Secretary.
Par. K-All members of the United Brotherhood of Carpenters and Joiners of
America employed as General Foreman, Foreman, or in any capacity where he
gives or directs work orders to carpenters within the jurisdiction of the Ohio Valley
Carpenters District Council must be in attendance at the quarterly indoctrination
classes for foreman to be held on the third Saturday of January, April, July, and
October of each year at the Carpenters' Home Building, 1228 Walnut St., Cincinnati,
Ohio. Sickness and unavoidable accident shall be the only excuse for non-
attendance. No member of the United Brotherhood shall work under any foreman
who does not attend these meetings.
SECTION 30
Par. A-The first member on any job ( foreman excepted) shall be Steward until
the Business Agent arrives. The Business Agents shall appoint all Stewards, who
shall fill out and send in Steward's report cards weekly to the District Council.
Par. B-The Steward shall immediately see that all carpenters on the job have
the current working card or bona fide permit, and all members coming on the job
thereafter shall show working credentials to the Steward before starting to work.
[Emphasis supplied.]
Par. D-The Steward shall report to the office immediately any infraction of the
Rules or Agreement.
Par. E-The Steward shall have the power to examine the pay envelope or pay
check of any member on the job, upon the order of the Business Agent or District
Secretary.
Par. H-The first member starting to work on a job shall notify the District
Council office of the location of the job.
Par. J-Any Employer discharging members for upholding Trade Rules shall
be deprived of Union Carpenters until the matter has been properly adjusted.
SECTION 31
Any member refusing to show his working card when called upon by the Business
Agent, Steward or brother member shall be subject to charges and penalized.
SECTION 35
Par. A-It shall be the duty of the Business Agents and the Secretary to see that
these Laws and Trade Rules are strictly enforced throughout the district:
Par. B-The Business Agents shall have the power, when they-find members
violating Trade Rules, to remove offending members from the job, pending action
of Council.
Par. C-Any member removed from a job by the Business Agent for violating
Trade Rules, and convicted of same, cannot go back to work on said job for the
duration of said job, nor can he work for the same contractor for a period of one (1)
year, except by permission of the District Council.
Great Eastern Color Lithographic Corp . and Local 52, Amal-
gamated Lithographers of America , Petitioner . Case No.
3-RC-2445. June 12, 1961
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Board on January 10, 1961,' an election by secret ballot was conducted
1 Not published in NLRB volumes
131 NLRB No. 138.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on January 23, 1961, under the direction and the supervision of the
Regional Director for the Third Region among the employees in the
appropriate unit. Following the election the Regional Director served
upon the parties a tally of ballots which showed that of approximately
39 eligible voters, 36 ballots were cast, of which 15 were for, and 6
were against, the Petitioner and 15 ballots were challenged. The
challenged ballots were sufficient in number to affect the results of the
election. Neither of the parties filed timely objections to conduct
affecting the results of the election.'
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation of the challenges and, on Febru-
ary 28, 1961, issued and served upon the parties a report on challenged
ballots, in which he recommended that the challenges to six ballots
be sustained, and that the Board accept the request'of five individuals
whose ballots were challenged to withdraw their votes Since the
sustaining of the above six challenges, and the withdrawal of the five
above ballots would result in the Petitioner receiving a majority of
the total valid ballots cast, he found it unnecessary to rule upon the
remaining challenged ballots, and recommended that the Petitioner
be certified as the collective-bargaining agent of the employees in the
appropriate unit. The Employer filed timely exceptions to the Re-
gional Director's report on challenges.
The investigation revealed that Charles Brown, Patrick Case,
Joseph Collier, Robert Olivet, and Salvatore Pace were challenged by
the Board agent because their names did not appear on the eligibility
list. All five individuals are alleged unfair labor practice dischargees
in an unfair labor practice proceeding now pending before the Board
(Case No. 3-CA-1503). Each voter in question submitted an affidavit,
apparently after the tally of ballots was issued, which stated in part
as follows:
I now desire to, and do hereby, withdraw the ballot I marked
at the said election with the same force and effect as if I had never
appeared at the polling place.
In his report the Regional Director noted that if the withdrawals
are not permitted a decision on the results of the election will be de-
layed until a determination has been made by the Board in the pend-
ing unfair labor practice case and concluded that "since any voter has
the well-established right to vote or not to vote a challenged voter
may of his own free will withdraw his ballot." He, therefore, recom-
mended that the withdrawals be permitted. We do not agree.
It is our view that once a ballot, whether or not it has been chal-
lenged, has been duly cast in an election, the voter loses control over
2 We agree with the Regional Director, for the reasons stated in his report issued on
March 15, 1961, that the objections filed by the Employer on March 6, 1961, are untimely
and, therefore, cannot be considered by the Board on their merits.
GREAT EASTERN COLOR LITHOGRAPHIC CORP. 1141
its disposition and may not as a matter of right have it withdrawn."
While the Board fully appreciates the need for the expeditious han-
dling of elections, we are also cognizant that such expedition must
be balanced with our obligations under the Act to conduct orderly
elections with sufficient safeguards to prevent possible abuses of the
election processes. To permit withdrawals of ballots would in certain
cases, as here, place the finality of the election in the hands of such
voters. Moreover, countenance of such a practice could conceivably
open our elections to possible abuses since, once the election results
were known, pressures of various kinds could be exerted upon voters
to withdraw their ballots to achieve a desired election result. Accord-
ingly, we shall overrule the Regional Director, and shall direct that
the determination of the status of the five individuals in question be
held in abeyance until the Board has ruled on their status, in the above
unfair labor practice case, or such case has been otherwise disposed of.
Similarly, we shall direct that the determination of challenges to the
ballots of Peter L'Episcopo, Benjamin Cross, Joseph Pellizzari, and
Arthur Smith whose status the Regional Director did not pass upon,
also be held in abeyance until the conclusion of the above unfair labor
practice case .4
DIRECTION
IT IS HEREBY DIRECTED that the challenged ballots of L'Episcopo,
Cross, Pellizzari, Smith, Brown, Case, Collier, Olivet, and Pace be
held in abeyance until their status has been determined as described
above, at which time the Regional Director is directed to proceed in
accordance with the Board's Rules and Regulations.
MEMBER FANNING, concurring in part and dissenting in part:
I agree with the majority that once a ballot has been cast it is out
of the control of the voter and that the Board cannot permit em-
ployees to withdraw their ballots. The reasons advanced by the
majority for such a ruling are compelling and I therefore join in the
majority opinion to that extent.
However, I do not agree that a final determination of the results of
the election need necessarily wait upon the disposition of the 8(a) (3)
8 This, in our opinion , is the precise issue before the -Board . Nowhere does it appear, as
our dissenting colleague implies, that there is before us rather a request to have the Board
open and count these challenged ballots. A necessary predicate to so doing would be the
withdrawal of the challenge itself and the Regional Director has not, in fact, sought to
withdraw his challenge.
4 In the absence of exceptions thereto, we shall adopt pro forma the Regional Directors
recommendation that the challenges to the ballots of Joseph Perretta , Melvin Moss,
Lewis van Tassel] , Joseph Gentile , and Thomas Rotella be sustained, and we hereby
sustain the challenges . As to the challenge to the ballot of Thomas Scofide, we find that
Employer's general exceptions are insufficient to controvert the findings and conclusions
of the Regional Director , and we shall , therefore , adopt his recommendation that the
challenge to the ballot of Scofide be sustained . In view of our determinations herein,
we find that the issues raised by the Employer for presentation in oral argument before
the Board have become moot, and we accordingly deny the Employer 's request.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues relating to the five 'voters who requested permission to with-
'draw their ballots, or of the other four challenged voters. In the
election 15 votes were cast for, 6 votes were cast against, the Petitioner
and 15 votes were challenged. The majority sustains the challenges
to six of the challenged ballots. The nine challenged ballots remain-
ing for disposition are sufficient in number to affect the results of the
election. Included in this group are the five individuals who requested
that their ballots be withdrawn. If only one of the nine individuals
has voted for Petitioner, or is eventually determined to be ineligible
to vote, the Petitioner has achieved a majority of the valid ballots
cast and is entitled to a certification of representatives. Thus, if but
1 of the challenged ballots has been cast for the Petitioner, and all 9
challenged voters are in fact eligible voters, the Petitioner will have
received 16 votes out of a maximum of 30 eligible voters. If the in-
dividual casting such ballot should, in fact, be ineligible to vote, the
maximum number of eligible voters will be reduced to 29 employees,
and the 15 ballots already counted for Petitioner will constitute a
majority for it. Since the eligibility of all but one of the nine chal-
lenged voters depends on a determination that they were unlawfully
discharged because of activities on behalf of the Petitioner,' it is
almost certain that one, at least, has voted for the Petitioner.' Be-
cause, as indicated above, such a favorable ballot woud give the Peti-
tioner a majority of the valid ballots cast, whether or not the indi-
vidual casting the ballot is eligible to vote, I would direct the Regional
Director to open and count the challenged ballots of the nine individ-
uals whose employee status is at 'issue in Case No. 3-CA-1503, and
issue a certification of representatives, if at least one is cast for Peti-
tioner.' If, contrary to all probabilities, it should turn out that all
of such ballots 'were cast against the Petitioner, the final disposition
of the challenges would have to await the disposition of the issues in
Case No. 3-CA-1503.
This is a unique case, but it is one in which the administrative
process is peculiarly adopted to effect a fair and speedy resolution of
the-issues involved.. What I propose here can in no way prejudice
the rights of the parties, nor is it prejudicial to the interests of the
employees. It properly balances the Board's obligations to conduct
orderly elections and does not give rise to possible abuse of the elec-
tion processes. At the same time it permits the most expeditious
& The ninth challenged voter ' s eligibility turns on whether he is or is not a supervisor
within the meaning of the Act , an issue which is also raised in the Case No. 3-CA-1503
9 This would certainly appear to be true of the five individuals who requested permission
to withdraw their ballots , a request which, if granted , would assure the Petitioner's
victory.
7I realize the Regional Director has not requested the Board to open and count these
ballots, but certainly the Board 's power to do so does not turn on the Regional Director's
request. In, any event , the Board can overrule the challenges to the extent I have in-
dicated . I see no reason why the Board should permit itself to be hobbled in the per-
formance of its functions by a technicality.
SWIFT & COMPANY 1143
determination of the results of the election. While it will, in all
probability, result in an immediate certification of representatives to
the Petitioner, instead of delaying such certification until after Case
No. 3-CA-1503 has been disposed of, such certification will neverthe-
less rest on a conclusive majority of the ballots.
MEMBER BROWN took no part in the consideration of the above Sup-
plemental Decision and Direction.
Swift & Company and Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Petitioner . Case No.
14-RC-3865. June 14, 1961
SUPPLEMENTAL DECISION AND ORDER
On January 19, 1961, the Board issued a Decision and Direction of
Election in the above-entitled proceeding,' in which it directed a
self-determination election in a voting group of plant clerical em-
ployees at the Employer's National City, Illinois, plant, to determine
whether they wished to be included in the production and maintenance
unit found by the Board to be represented by the Petitioner. The
Board included in the voting group the garage stenographer as a non-
confidential employee.
On February 1, 1961, the Employer filed a motion to reconsider
the Decision and Direction of Election, in which it contended that
the Board should not have, absent the consent of the parties, directed
that an election be held to determine whether the voting group of
plant clerical employees desired inclusion in the production and main-
tenance unit; and, further, that the Board erroneously included the
garage stenographer in the voting group. On the same day the Peti-
tioner filed a reply, also requesting that the Board reconsider that
portion of its Decision which would have required the plant clerical
employees to be included in the production and maintenance unit and
instead find that the plant clerical employees may constitute a sep-
arate appropriate unit; and further that the Board amend its Direc-
tion of Election by substituting, for the Petitioner's name, the name
of the Petitioner's Local 44, created after the hearing herein for the
purpose of representing the plant clerical employees at the National
City plant.
In view of the foregoing, including the fact that the bargaining his-
tory does not indicate that the plant clerical employees have ever been
included in the production and maintenance unit in this or other plants
of the Employer; the mutual objection of the parties to their inclusion
'1129 NLRB 1391.
131 NLRB No. 146.