Van Raalte Co., Inc.,

National Labor Relations Board - Board Decisions

May 20, 1943

49 N.L.R.B. 985 (N.L.R.B. 1943)

In the. Matter of VAN RAALTE COMPANY, INC., and TEXTILE WORKERS
UNION OF AMERICA, C . I. 0.
Case No. R-4906
SUPPLEMENTAL DECISION
,AND
DIRECTION
May ^00, 19,113
On February 26, 1943, the National Labor Relations Board issued a
Decision and Direction of Election in the above-entitled proceeding.
Pursuant to the Direction of Election, an election by secret ballot was
,conducted on March 16, 1943, under the direction and supervision of
the Regional Director for the Third Region (Buffalo, New York).
.On March 29, 1943, the Regional Director, acting pursuant to Article
III, Section 10, of National Labor Relations Board Rules and-Regu-
lations-Series 2, as amended, issued and duly served upon the parties
his Report on Ordered Election.
As to the balloting and its results, the Regional Director reported
as follows :
Approximate number of eligible votes------------------------ 1243
Total ballots cast__________________________________________ 1087
Total ballots challenged------------------------------------ 25
Total void kiallots------------------------------------------ 0
Total blank ballots----------------------------------------- 1
Total valid votes counted----------------------------------- 1061
Votes cast for Textile Workers Union of America, C. I. 0------ 532
Votes cast against Textile Workers Union of America, C. I. 0-_ 529P
In his Report on Ordered Election, the Regional Director recom-
mended that three ballots challenged by Van Raalte Company, Inc.,
herein called the Company, which ballots had in each case the word
"yes'.' written in the "Yes" square without other marking, and that six
ballots challenged by the Textile Workers Union of America, C. I. 0.,
herein called the Union, which ballots had in each case the word "no"
written or printed in. the "No" square without other marking, be
counted as valid, affirmative, and negative votes, respectively. The
1 47 N L. R. B. 1110
49 N. L R. B., No. 144
985
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director further recommended, that two ballots challenged
by the Union, one of which h'ad the word "no" written in the "No"
square together with a check mark therein and the other a circular
scribbling and general defacing of the "No" square, without other
marking, be considered invalid and not counted.
In addition to the unidentified ballots above referred to, the 'Re-
gional Director reported on challenges made by agents of the Board,
the Union and the Company to the'ballots of specifically named em-
ployees. Of the seven challenges made by the.Board agents upon
the ground that the names of the individual voters did not appear
on the eligibility list, the Regional Director recommended that the
challenges to the ballots of Florence ,Bielaskzka, Bernice Opasinch,
Mary Sinare, and Grace Parlato be overruled, and the challenges
to the ballots of Marion Poland, Frank Klajbor, and Helen Demp-
sey be sustained. Of the six challenges made by the Union and
arising out" of the status of individual voters, the Regional Director
recommended that the challenges to the ballots of Margaret Kane,
Shirley May, Mary Grazier, and Paul Privatera be sustained and the
challenges to the ballots of Anna Bannister and Anna F., Raths be
overruled. With respect to the ballot of Evelyn Ziemba, alone chal-
lenged by the Company, the Regional Director recommended that the
challenge be overruled and her ballot opened and counted.
Thereafter, the Company filed objections to the Report on Ordered
Election, which objections as subsequently amended by the Company
contended that the Regional Director had erred in his ruling sus-
taining the Union's challenge with respect to the two unidentified
ballots for the alleged irregular marking thereof, and also in his
rulings with respect to the challenged ballots of Frank Klajbor,
Margaret Kane, Shirley May, Mary Grazier, Paul Privatera, and
Evelyn Ziemba. The Company filed no objections to other rulings \
of the Regional Director.
On April 20, 1943, the Regional Director issued and duly served
upon the parties his Report on Objections, in which he found to be
without merit the Company's contentions with respect to the two
unidentified ballots challenged by the Union for irregular marking,
and also the ballots of Margaret Kane, Shirley May, and Evelyn
Ziemba, but ruled in favor of the Company with respect to the
challenged ballots of Frank Klajbor, Mary Grazier, and Paul Priva-
tera, all of which ballots lie recommended be opened and counted.
With respect to the two unidentified ballots, as to which the Com-
pany opposes the recommendation of the Regional Director, the first
'in order for consideration is the ballot wherein the word "no" is
written in the "No" square, together with a check mark in the same
square. The Regional Director ruled that because of the double
VAN RAALTE COMPANY, INC. 987
marking the secrecy of- the ballot had been violated and accordingly
recommended that it be declared invalid. While the Board has in a
previous case' cited by the Regional Director in support of his
ruling, held that under certain circumstances a double marking
showing an ambiguous intent on the part of the voter will invalidate
the ballot in • question, we are of the opinion and find that the
marking in the instant case clearly indicates an intent upon the part
of the voter to cast a negative ballot and is plainly distinguishable
from that involved in the case cited. Accordingly, we overrule the
recommendation of the Regional Director and find that the ballot is
valid and should be counted.
The second of the two ballots, ruled invalid by 'the Regional
Director for irregularity in the marking thereof, is the ballot wherein
it appears that the voter made a circular scribbling in the "No"
square without any other marking thereon. The Regional Director
found that the voter's intent was ambiguous and recommended that
the ballot be held invalid. The Company objects, stating that the
intent of the voter to designate "no" seems "obvious." An inspec-
tion of the ballot suggests that the voter may have started to mark
an X on the square and then scratched it out. We are of the opinion
and find that the ballot is ambiguous and does not clearly indicate
the intent of the voter. Accordingly, we sustain the recommenda-
tion of the Regional Director and find that the ballot is invalid and
should not be counted.
The ballot of Frank Klajbor was challenged by agents of the
Board upon the ground that his name did not appear on the list of
apparently eligible voters. In his Report on Ordered Election, the
Regional Director originally reported that his investigation dis-
closed that this voter was a machinist who exercised supervisory
duties and recommended that his ballot be set aside and not counted.
The Company in its objections to the recommendation stated this
employee has no supervisory or instructive duties and is simply a
maintenance employee. The Regional Director in his Report on
Objections stated that further investigation reveals that this em-
ployee is a machinist engaged in maintenance and repair work with-
out supervisory duties and compensated on a basis similar to that of
ordinary production and maintenance employees. The Regional
Director therefore reversed his former recommendation and recom-
mended that the challenge be overruled and the ballot opened and
counted. We find that Frank Klajbor is an ordinary maintenance
employee. We, shall sustain the recommendation of the Regional
Director and shall direct that this vote be opened and counted.
' See Matter of Truscon Steel Combany and Local 4S7, International Association of
Bridge, Structural and Ornamental Iron Workers (AFL), 36 N. L. P. B. 983.
988 DEiCTSIONS OF' NATIONAL LABOR RELATIONS BO'Aa
The ballot of Margaret Kane was challenged by the Union upon
the ground that she was not a production worker and spent more
than 50 percent of her compensatory, time as a saleswoman in the
Company's salesroom. In his Report on Ordered Election, the Re:
gional Director stated that his investigation disclosed that Kane was
primarily engaged as - a saleswoman and recommended that her bal-
lot be set aside and not counted in the -election. The Company in its
objection to the recommendation admits that she is employed in the
salesroom more than 50 percent of her time but contends that the
salesroom, is the factory salesroom where the materials sold are sold
only to employees, as a service to employees and at a rate advan-
tageous to them. The Regional Director in his Report on Obj ec-
- tions reaffirmed his previous recommendation, stating that the voter
had signed a sworn statement wherein she stated that she had been
in the employ of the Company for approximately 8 years and that
during this period had been mainly engaged in selling merchandise
to employees, working in an employees' salesroom; that, when not
engaged in selling, she is responsible for keeping the salesroom in
order, ordering stock, the keeping of sales and stock records and
accounting for cash receipts from sales; that it is only on occasion
that she may take some production work into the salesroom to fill
in her time, 80 percent of which she estimates is spent. in sales
activities. We find that Margaret Kane is not a production em-
ployee, and therefore not within an eligible category. We shall
sustain the recommendation of the Regional Director and shall direct
that her ballot not be counted. -
The ballot of Shirley May was challenged by the Union on the
ground that she is employed by the Company as a saleswoman. The
Regional Director found that this employee was primarily engaged as
a salesperson and that she is merely incidentally engaged in produc-
tion work. He therefore recommended that the challenge be sus-
tained and the ballot set aside and not counted. The Company in
its objection to the recommendation urged the same contention as
in the case of Margaret Kane, previously referred to. The Regional
Director in his Report on Objections reaffirmed his recommendation
and further stated that while this employee spends more time in
production work than does Margaret Kane, she is, nevertheless, pri-
marily concerned with her salesroom duties. The Regional Director
reports that the voter has estimated in a sworn statement, which is
supported by investigation, that her primary responsibility is to
work in the salesroom and return to her production work whenever
her sales duties are completed. We find' that Shirley May, like
Margaret Kane, is not a production employee or entitled to vote in
the election directed by the 'Board among "production and main-
VAN RAALTE COMPANY, INC. 989
tenance employees" of the Company. We shall sustain the recom-
mendation of the Regional Director and direct that her ballot not
be counted.
The.ballot of Mary Grazier was challenged by the Union for the
reason that she is alleged to be a clerical employee. The Regional
Director originally reported that his investigation disclosed that this
voter is a clerical and supply employee and recommended that the
challenge be sustained and the ballot set aside and not counted. The
Company in its Objections contended that this employee was a member
of the Indirect Labor Personnel, supplying work to the operators
at the machines and was one of the Company's so-called "cage" em-
ployees or stock girls; that her work was entirely production; that
she did very little counting and that only coincident with her "cage"
work. The Regional Director in his Report on Objections stated
that the position of the Company is substantially correct; that a signed
and sworn statement of the voter sets forth her responsibilities to be
of a supply nature rather than a clerical one; that her work is no
different from that of other "cage" employees whom the Union insisted
were eligible to vote and did not challenge at the election. The Re-
gional -Director,- therefore reversed,his, former, recommendation and
recommended that the Union's challenge be overruled and the ballot
opened and counted. We find that Mary Grazier is not a clerical
employee and is properly within the description of the appropriate
unit. We shall sustain the recommendation of the Regional Director
and shall direct that her ballot be opened and counted.
The ballot of Paul Privatera was challenged by the Union on the
ground that he was considered to be a head machinist and a super-
visory employee.. The Regional Director originally reported that-his
investigation disclosed that this voter was a head machinist and super-
visory employee and that he exercised supervisory duties whenever
Anthony Privatera, the voter's brother and immediate supervisor, was
absent from duty. The Regional Director therefore recommended that
the vote be not counted. The Company stated in its objections,that
this employee is not a head'machinist or supervisory employee; that
he has no one working under him and that during the absence of the
head machinist has no more right to exercise authority than any other
machinist in the mill. The Regional Director stated in his Report on
Objections that further investigation revealed that this employee is a
machinist engaged in maintenance and repair work; that his duties
are not supervisory in nature and that he is compensated on an hourly
basis, the same as other machinists working on the same shift as this
-voter; that this voter does not exercise the-duties of his brother, the
head machinist, in any substantial respect; and that other machinists
as well as this voter engage in the occasional instructing of inexperi-
enced machine employees known as belt boys and that this voter cannot
990 DEICTSIONS OF -NATIONAL LABOR RELATIONS BOARD
be considered as having a status supervisory in nature with respect to
these belt boys. The Regional Director therefore reversed his former
recommendation and recommended that the challenge be overruled
and the vote be opened and counted. We find that Paul Privatera
is not a supervisory employee and is properly within the appropriate
.unit. We shall sustain the recommendation of the Regional Director
and shall direct that his ballot be opened and counted.
The ballot of -Evelyn Ziemba was challenged by the Company for
the reason that she was considered an instructress. The Regional Direc-
tor reported that his investigation revealed that this voter is primarily
engaged in production work and recommended that the ballot be
opened and counted. The Company stated in its objections that this
employee spends 391/2 percent of her time in production work and
601/2 percent of her time instructing. In his Report on Objections, the
Regional Director affirmed his recommendation and reported that
work records submitted by the Company indicate that since the work-
week of August 29, 1942, through the week of February 20, 1943,
this employee put in 634.2 hours in production work and 411.3 hours
in instructing work. The Regional Director further stated that all
considerations point to the employee being considered a production
employee and treated essentially as such.
Since issuance of the Report on Objections, the Company in a letter
to the Board has stated that since January 1943, this employee has
spent about 60 percent of her time instructing-having "working up
to the point where she was primarily an instructress and her produc-
tion work was incidental." The Company claims that a chart showing
her work, which chart was submitted to the Regional Director, will
so show.
In view of the alleged change in the nature of the work performed
by Evelyn Ziemba and the absence, of sufficient *evidence to establish
her present status we shall for the present defer making a decision
with respect to her eligibility. In the event that after the counting
of the ballots found valid. herein the results are inconclusive and a
determination of the validity of Ziemba's ballot would affect the re-
11 sults, we shall direct that the Regional Director make further in-
vestigation of the status of this employee and report thereon.
The recommendations of the Regional Director sustaining the
challenges to the ballots of Helen Dempsey and Marian Poland, and
overruling the challenges to the three unidentified "yes" ballots, the
six unidentified "no" ballots, the ballots of Florence Bielaskzka,
Bernice Opasinch, Mary Sinare and,Grace Parlato, and the ballots
of Anna Bannister and Anna F. Raths, are sustained, since neither
of the parties offered any objections to them.
VAN RAALTE COMPANY, INC.
DIRECTION
991
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act and pursuant to Article III, Sections 9 and 10, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby '
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Van Raalte Company, Inc., Dunkirk, New York, the Regional
Director for. the Third Region shall, pursuant to the Rules and
Regulations of the Board, set forth above, and subject to Article III,
Section 10, of said Rules and Regulations, within ten (10) days from
the date of this Direction, (1) open and count the ballots of Florence
Bielaskzka, Bernice Opasinch, Mary Sinare, Grace Parlato, Frank
Klajbor, Mary Grazier, Paul Privatera, Anna Bannister, and Anna
F. Raths, and shall, thereafter, prepare and cause to be served upon
the parties in this case, a Supplemental Election.Report, embodying
his-findings therein and his recommendations as to the results of the
secret ballot; and (2) if after-counting the ballots of the "aforesaid
persons and tabulating the 10 unidentified ballots found valid the
results are not decisive, investigate and report further with respect
to the eligibility of Evelyn Ziemba.
MR. GERARD D. REILLY took no part in the consideration of the
above Supplemental Decision and Direction.
y