Burrows & Sanborn, Inc.

In the Matter of BURROWS & SANBORN, INC., EMPLOYER and RETAIL CLERKS INTERNATIONAL ASSOCIATION A. F. OF L., PETITIONER Case No. 1-RC-794 SUPPLEMENTAL DECISION AND DIRECTION June 14, 1949 Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board on March 9,1949,1 an election by secret ballot was conducted on March 30, 1949, under the direction and super- vision of the Regional Director for the First Region, among the em- ployees of the Employer in the.unit found appropriate by the Board. Following the election, the parties were furnished with a Tally of Ballots. The tally shows there were approximately 135 eligible voters and that 142 valid ballots were cast, of which 58 were for the Petitioner, 58 against the Petitioner, and 26 were challenged. On April 6, 1949, the Employer filed objections to the conduct of the election. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director investigated the chal- lenges, as well as the Employer's objections, and on May 5, 1949, issued and duly served on. the parties' his report on the objections and the challenged ballots. The Regional Director recommended that the 'objections be overruled, that the challenges to 10 ballots be sustained, and the challenges to 16 ballots be overruled. Thereafter, the Em- ployer filed exceptions to so much of the Regional Director's report as recommended that the objections to the conduct of the election and the challenges, to 12 ballots be overruled and the challenge to 1 ballot be sustained. The objections to, the conduct of the election The Employer objects to the conduct of the election and urges that the election be set aside for two reasons : (1) the person designated by the Employer was not permitted to act as observer at the election ; and ' 81 N. L. R. B 1308. 84 N. L. R. B., No. 35. 304 BURROWS & SANBORN, INC. 305 (2) the Employer's observers were not allowed to challenge voters'. eligibility after the ballots were marked, but were directed to make any challenges before such voters marked their ballots. The Regional Director's report shows that on March 21, 1949, at a conference of the parties called for the purpose of arranging the de- tails of the election, counsel for the Employer designated Laura Ricker as observer for the Employer. The Petitioner objected to Miss Ricker on the ground that she was a supervisor and, as such, was ineligible to serve as observer. It was then suggested that Dorothea O'Keefe and Marian Beaulieu, personnel clerks, be designated as observers for the Employer. Both parties agreed to the suggestion and the named individuals were appointed observers and represented the Employer at the election. The Employer now contends that Laura Ricker is not a supervisor as defined in the National Labor Relations Act and that the individuals appointed as observers for the Employer were not properly qualified by age and experience to act as observers. The Employer does not, however, allege in its exceptions : that its counsel was not authorized to agree to the selection of O'Keefe and Beaulieu as observers for the Employer; that these persons did not adequately represent the Employer at the election; or that any prejudice to the Employer resulted from their designation as observers.2 An employer does not have an absolute right to appoint observers in a Board-conducted election.3 Board Rules permit parties to be represented at an election by observers of their own selection, but subject to such limitations as the Regional Director may prescribe .4 It is established Board policy that supervisors may not act as observers for an employer.5 Consequently, when in this case objection was made that the individual designated by the Employer was a supervisor, it was proper for the Regional Director's representative to suggest that other persons be appointed as observers without first conducting an investigation as to whether or not the Employer's appointee was, in fact, a supervisor.g The Employer's second objection also relates to the mechanics of the election. The Employer contends that there is no regulation 3 See Matter of Tri-Cooties Broadcast Company, 74 N L. R B. 1107, 1109. 3 Matter of The Union Switch & Signal Company, 76 N. L. R. B 205, 211; Matter of The Shenango Furnace Company, 62 N. L. R. B. 1231 , 1233; Matter of Harry Manaster & Bro., 61 N. L. R. B. 1373, 1374 ; Marlin-Rockwell Corporation v. N. L. R. B., 116 F. (2d) 586, 587 (C. A. 2). * Rules and Regulations-Series 5, Section 203.61. 5 Matter of Hoague Sprague Corporation, 80 N. L. R. B.' 1699; Matter of Harry Manaster & Bro., footnote 3, supra; Matter of Paragon Rubber Co , 7 N. L. R. B. 965, 966. 6 Cf Matter of Worcester Woolen Mills Corporation , 69 N. L. R B. 425 ; 74 N. L. R B. 1071 ; enfd. N. L. R B. v. Worcester Woolen Mills Corporation, 170 F. ( 2d) 13 (C. A 1), certiorari denied, 336 U S 903. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which requires challenges to be made before rather than after the ballots are marked , and that the Regional Director, by adopting the former procedure at the election herein, adversely affected the Em- ployer's exercise of its right of challenge. It contends that the voicing of challenges before the ballots are marked antagonizes the challenged voters. However, the procedure followed in this case was the cus- tomary procedure generally employed in Board elections . The Board has found that challenging voters whose eligibility is questioned before they mark their ballots is more facile and practical than requiring chal- lenges to be made after such ballots are marked . We do not believe that such procedure interferes with employees' free selection of bar- gaining representatives. We find, therefore, that the Employer's objections do not raise sub- stantial and material issues with respect to the conduct of the election. Accordingly, the objections are hereby overruled. The challenged ballots Twenty-six ballots cast at the election were challenged : 22 by the Employer, and 4 by the Petitioner. The Petitioner challenged the ballots of Jean Hartwell , Herbert Clark, Helen Bachorowska, and Howard Bacon on the grounds that the first 3 named employees are supervisors and that the last named employee is a guard . The Regional Director recommended that the challenges to these ballots be over- ruled. Because no exceptions have been filed to the Regional Director's finding with respect to these 4 employees , we shall adopt the Regional Director's recommendation that the challenges be overruled and direct that their ballots be counted. The Employer challenged the ballots of Ethel Condon, Edward Cate, Jessie Innocenti , Madeline Huff, Marion Tyler, Margaret Niland, Mary Kiley, Clara Tobin, and Amelia Cate. The Regional Director recommended that the challenges to these ballots be sustained. Be- cause no exceptions have been filed to the Regional Director 's findings with respect to these nine employees , we shall adopt the Regional Director's recommendations and sustain the challenges to such ballots. The Employer challenged the ballots of the following 10 employees : Muriel McGann, Elizabeth Jolly, Genevieve Christopher, Irene Couturier, Madeline Liberatti , Eleanor Traviscio , Beverly Keating, Olive Gustafson, Mae Reid, and Mary Glebus . The reason advanced for these challenges is that the named employees are part-time em- ployees who work less than 17 hours per week and that an agreement was made at the hearing to exclude such employees from the unit. The Regional Director recommended that the challenges to these ballots be overruled, because the record does not support the Em- BURROWS & SANBORN, INC. 307, ployer's contention that an agreement was made to exclude such em- ployees from the bargaining unit and because the Board specifically included them in the appropriate unit in its Decision and Direction of Election. In its exceptions to the Regional-Director's report and in its subsequent motion for a hearing on the issues raised by its challenges to these ballots, the Employer repeats its contention that an agreement was made to exclude part-time employees working less than 17 hours per week. It further asserts that if the Board de- termines that such agreement was not in fact made, then it was misled into believing that such agreement had been reached and consequently omitted to offer proof to show that these employees should not have been included in the unit. The Employer states that, if given an opportunity, it will offer evidence to prove that 8 of these 10 challenged employees work only 5 hours per week, that they are high school students earning approxi- mately $2.50 to $3 per week, that they do not share many employee benefits with the other employees, and that there is a high rate of turn-over in the employment of students. The record does not clearly establish any agreement between the Employer and the Petitioner to exclude these part-time employees from the unit. In any event, an agreement between the parties to a representation proceeding with respect to exclusions and inclusions from the appropriate unit is not binding upon the Board. The Employer suffered no prejudice by failing to offer the aforesaid evidence at the hearing, because it has been the Board policy ordinarily to include regular part-time em- ployees in appropriate bargaining units and to allow such employees to cast ballots in representation elections although they may be high school students.7 Accordingly, the challenges to these ballots are overruled and the Employer's motion for a hearing is hereby denied. The Employer challenged the ballots of Marie Connors and Nellie Dagenais on the ground that these individuals were not employees on the eligibility date. The Regional Director found that on such date they had been temporarily laid off and recommended that the chal- lenges to their ballots be overruled. The Employer excepts to these findings of the Regional Director, contending that these individuals had been permanently laid off. The Regional Director's report states that the ballot of Mary Gun- derman was challenged by the Employer on the ground that she was a casual employee of the Employer. The Regional Director recom- mended that the challenge to this ballot be sustained. The Employer, T Matter of John Janowski, et al, '81 N L R B 216; Matter of Florshe,m Retail Boot Shop, 80 N. L. R B. 1312, Matter of Inter-Mountain Telephone Company, 79 N L R. B 715 308 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD in its exceptions, states that it did not challenge the ballot of Mary Gunderman. Because issues of fact are raised by the Employer's exceptions to the Regional Director's report with respect to the challenges of the ballots of Marie Connors, Nellie Dagenais, and Mary Gunderman, we shall at this time make no determination regarding the validity of these ballots. We shall direct that the ballots, the challenges to which have been overruled, be opened and counted. If, after a new Tally of Ballots is prepared, it is found that the ballots of Connors, Dagenais, and Gunderman can affect the outcome of the election, we shall then order a hearing to resolve the issues of fact with respect to these challenges. DIRECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Burrows & Sanborn,.Inc., of Lynn, Massachusetts, the Regional Director for the First Region shall, pursuant to the National Labor Relations Board Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots of Muriel McGann, Elizabeth Jolly, Genevieve Christopher, Irene Couturier, Madeline Liberatti, Eleanor Traviscio, Beverly Keating, Olive Gustafson, Mae Reid, Mary Glebus, Jean Hartwell, Herbert Clark, Helen Bachorowska, and Howard Bacon, and thereafter cause to be served upon the parties a Supplemental Tally of Ballots, including therein the count of such challenged ballots. MEMBERS HOUSTON and GRAY took no part in the consideration of the above Supplemental Decision and Direction.