Gary Enterprises, Inc.

In the Matter of GARY ENTERPRISES,-INC. and PLASTIC, Bu'ITO- AND NOVELTY WORKERS UNION ( PLASTIC, MOLDERS AND NOVELTY WORK- ERS UNION, LOCAL 132, ILGWU, AFL Case No. 2-RC-723 SUPPLEMENTAL DECISION ORDER AND SECOND DIRECTION OF ELECTION October 10, 19.1p On May 27, 1949, the Board issued an order reopening the record and remanding this proceeding to the Regional Director for hearing on certain issues raised by objections filed by the Employer, to the elections conducted herein on March 31, 1949. On July 26, 1949, the hearing was held. On September 1, 1949, the hearing officer issued and duly served upon the parties his Report on Objections, a copy of which is attached hereto, recommending that the election be set aside and a new election be directed, because the conditions under which the election was held were not such as to insure a free expression of the desires of the employees. Upon consideration of the entire record in this case, the Board adopts the findings of the hearing officer; they are hereby approved and made a part of the record in this proceeding. Accordingly, we shall set aside the election conducted herein and shall direct a new election among the employees in the appropriate unit,' who were employed during the pay-roll period immediately preceding the issuance of this Second Direction of Election. ORDER IT IS HEREBY ORDERED that the election of March 31, 1949, conducted among the employees of Gary Enterprises, Inc., Brooklyn,°New York, be and hereby is, set aside. ' Matter of General Shoe Corporation, 77 N. L. R. B. 124. 2 Matter of Gary Enterprises, Inc., 81 N. L. R. B. 1349. 86 N. L. It. B., No. 58. 431 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SECOND DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Second Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in the original Decision and Direction of Election herein, who were employed during the pay-roll period im- mediately preceding the date of issuance of this Second Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off,, but excluding those employees who have since quit or been discharged. for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not en- titled to reinstatement, to determine whether or not they desire to be represented for purposes of collective bargaining, by Plastic, Button and Novelty Workers Union (Plastic, Molders and Novelty Workers Union), Local 132, ILGWU, AFL. MEMBERS HOUSTON and MURDOCK took no part in the consideration of the above Supplemental Decision, Order, and Second Direction of Election. REPORT ON OBJECTIONS TO ELECTION WITH RECOMMENDATIONS PRELIMINARY STATEDIENT An election was held in the above-entitled proceeding on March 31, 1949, under the direction and supervision of the Regional'Director for the Second Region; on April 6, 1949, objections thereto were filed by the Employer; on May 11, 1949, the Regional Director issued his Report on Objections ; and thereafter, on May 16, 1949, exceptions to his Report were filed by the Employer. Briefly stated, the objections to the election alleged that there had been inter- ference, restraint, and coercion by Union Business Agent Ralph Smith in that the voters were obliged to mark their ballots in his presence and were not allowed to vote in secret ; further, that the election did not take place at the place desig- nated in the Notice of Election and that because of the p'.aysical lay-out of the voting place, it was not possible to hold a proper and secret election. The Regional. Director in this Report found that Smith had been in the voting area in the morning when the Union observer at the election cast his ballot; that Smith left the voting premises thereafter and was not present during the subse- quent voting in the morning and afternoon; that the observers turned-their backs while employees voted and it was impossible to see how the employees voted ; that the observers had not complained of the conduct' of the election and had signed the certificate that the election had been properly conducted; that the one vote that was cast while Smith was present would not be decisive in any event; that no prejudice resulted from holding the election in the physical location GARY ENTERPRISES, INC. 433 -where the voting took place. The Employer's Exceptions alleged that Smith was _present in the room where the election was held during the entire morning voting :period ; that the observers did not turn their backs during the voting; that the election was held in an unsuitable small room which had not been designated as the voting place in the Notice of Election; that the failure of the Company observer to object to the manner of conducting the election was not significant because the observer was not familiar with or expert in election procedure. By an Order, dated May 27, 1949, the Board directed that a hearing officer -conduct a hearing in the above matter and that the hearing officer prepare and cause to be served upon the parties a Report, containing findings as to the credi- bility of witnesses and recommendations to the Board as to the disposition of the aforesaid objections and exceptions. Pursuant to notice, on June 2S and 29, 1949, and on July 26, 1949, a hearing was held in the above matter before Rainey Donovan, Hearing Officer, in a hear- ing room at the offices of the Second Region of the Board in New York, N. Y. The Employer, the Union, and the Board were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT a. General 'The election, the conduct of which has been placed in issue, was held on the premises of Gary Enterprises, Inc., herein referred to as the Employer, on March 31, 1949. The voting took place at a morning session of 8: 00 a. in. to 8: 15 a. in. and at an afternoon session of 4: 15 p. in. to 4: 45 p. in. The Board Agent in charge of the election was Mildred Steiner ; the Union observer at the morning voting period was employee James Hall and at the afternoon period the Union observer was employee Gordon Williams; the Employer's bookkeeper, Shirley Leed, acted as the Employer's observer at both the morning and after- noon voting. b. The Polling Place The Notice of Election described the polling place as "Storage Room, First Floor of Plant Outside Dressing Room." When Steiner arrived at the plant on the morning of the election she introduced herself to Leed and asked Leed for the location of the dressing room.' Leed pointed out the dressing room to Steiner and explained that the room was being used by the employees to change their clothes and, further, that the light in that room was poor. Both Steiner and Leed concluded that under the circumstances the dressing room would not be a suitable polling place, and it was decided to use the Company office in lieu thereof. Whether Steiner or Leed first suggested the Company office as a polling place is not of controlling importance, since neither Leed nor anyone else raised any issue about the locus of the voting on March 31, 1949. It seems reasonably apparent that both Leed and Steiner, when confronted with the dressing room situation, referred to above, resorted to what appeared to them a reasonable improvisa- 1 It appears from Leed's testimony that there was a dressing room on the main floor of the plant and a storage room on the second floor of the plant . There was no location in the plant corresponding to the polling place described in the Notice of Election. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of a polling place. In view of Steiners' position as the Board agent in charge of the election, the ultimate responsibility of the situs devolved on her, but there is no evidence, as has already been noted, that Leed objected to the site chosen or expressed doubt as to the suitability of the office. The election was conducted in the Company office, a room which opened on one side into the plant and on the opposite side of which was a door leading to the street. This office was approximately 12 feet long and 12 feet wide. The furni- ture of the office consisted of a filing cabinet, desk, and chair on the side of the office fronting on the street. On the plant side of the office was another filing cabinet and a book case. The office also contained a table and chair used by the election observers and by the Board Agent, as well as a desk and chairs 2 There was no voting booth used during the election and Board Agent Steiner made no request or effort to secure a booth. The ballots, after being marked by the voters, were deposited by the voters in a sealed ballot box located in the office where the voting took place. c. The Events at the Polling Place In support of its posibion the Employer called as witnesses Shirley Leed, Aaron Rosenthal, Marty Chasin, Milton Dembin, and Reuben Krauser. All of the fore- going were and are employees of the Company and all, with the exception of Leed, cast ballots in the election.' Leed was and is employed by the Company as a bookkeeper, and she functioned as the Company's observer at the election. Witnesses called by the Union were James Hall, Ralph Smith, Gordon Wil- liams, and Mildred Steiner. Hall and Williams were and are employees who voted in the election, and they acted as Union observers at the morning and after- noon voting sessions, respectively. Smith and Steiner were and are the Union's business agent and the Board Agent, respectively. With some exceptions, the witnesses called by the parties were in sharp con- flict as to what took place at the election. The undersigned finds that the voter, when he entered the office which served as the polling place, was instructed by Steiner to take his ballot and to mark it secretly and then deposit it in the ballot box. The voter then went to the corner of the room farthest from the table at which the observers and Steiner were situated and marked his ballot, either on the wall. or on top of a book case or in any other manner that he deemed appropriate and convenient, and deposited the ballot in the ballot box. The voters either had their backs turned to the observers and Steiner when they voted or wedged themselves into a sideways position between the book case and the filing cabinet in the corner afore-described. The exceptions to the general position of the voters when they marked their ballots are furnished by the statements of Dembin and Krauser, which the undersigned credits in this respect. Dembin and Krauser had each been instructed by Steiner to mark his ballot in secret. Dembin marked his ballot at a desk in the polling 2 A diagram of the room, which is in evidence as Hearing Officer's Exhibit 1, illustrates the relative positions of the above-described furniture in the office. 3 The Notice of Election described "foremen" as being within the eligible group of voters. In the Company's employ there are three foremen (Rosenthal, Chasin, and Dembin) and a "supervisor," the latter being described as the "general foreman" or superintendent. The plant has three shifts, with a foreman for each shift. The foremen are hourly paid. Dembin, the foreman on the 4 to 12 shift, testified that three employees worked with him on the shift. He stated that his job "is to see that the place runs right, machines are going properly. I also run. the machines, relieving for lunches . . . ." Dembin testified that he assigned work and could recommend disciplinary action, that he was " in charge" of his shift since there was no "supervisor" present, and that he received 65¢ to 70¢ more per hour than the highest paid man on his shift. GARY ENTERPRISES, INC. 435 place. The desk was approximately in the middle of the room but at the side of the wall farthest from the location of the election officials. Krauser took his ballot just outside the office, marked the ballot on a table outside the office door leading to the plant, returned to the office and deposited the ballot in the box 4 Steiner testified that she had instructed the observers to turn their backs to the voters while the latter were marking their ballots. She testified that she had turned her back while the balloting took place and that the observers had done likewise. All observers, Leed, Hall, and Williams, testified that their backs were not turned to the voters. The undersigned finds that the observers were facing in the general direction of the voters while the latter marked their ballots and that the voters were in view of the observers and of anyone else in the room.' d. The Presence of Smith at the Polli'ay Place Coming now to the issue of Union Business Agent Smith's presence in or absence from the polling place during the election, the record was as follows : Leed testified that Smith was requested by Steiner to leave the office but that he was present when the first voter voted at the beginning of each session, morning and afternoon, respectivley. Leed said that she slid not know whether or not Smith was present or absent while the balance of the voting took place. Rosen- thal, Chasin, and Dembin testified that Smith was present in the office when each of them respectively, voted.' Hall testified that when he came into the office Smith was present. Hall was unable to recall whether Smith was present or absent when he voted or whether Smith was present or absent thereafter. Krauser testified that Smith was in the office when he went in to vote. Krauser took his ballot outside, marked it, and then returned to the office, where he deposited the ballot in the box. He testified that Smith was in the office when he (Krauser) deposited his ballot. In his testimony iSmith stated that he had been present in the office when the first man (Hall ) voted in the morning but that he had not been present thereafter. Williams testified that Smith was not in the office when he cast his ballot. He also testified that Smith left the office after being instructed to do so by Steiner at the inception of the afternoon ses- sion. Steiner testified that Smith had been in the office in the morning but that he had left at her request before the first man voted. She testified to the same effect with respect to-the afternoon session. On cross-examination Steiner ad- mitted that she was in doubt about her recollection of whether Smith was present when the first man voted. The undersigned, on the whole, considers Shirley Leed to have been a credible witness. She impressed the undersigned as a witness who in her desire to relate the facts endeavored neither to overstate nor to understate the events occurring at the election. Leed testified that at the morning and afternoon sessions Steiner had requested Smith to leave the office; that with respect to the morn- ing voting, she (Leed) believed that Smith walked out but she thought that he had returned, since he was present at the end of the morning voting ; that in the afternoon Smith was present when the first voter voted; that Smith "came back. He had been out and returned after we had finished balloting" (in the afternoon). It is significant that Leed, the Company's observer and a Company witness, felt unable to testify that Smith had remained in the office while voters, *Conduct of the type testified to by Krauser was not referred to in either the objec- tions or exceptions. ' The one exception was Krauser, who apparently was unobserved when he left the room to mark his ballot. 6 Rosenthal and Chasin voted in the morning ; Dembin voted in the afternoon. The Company's exceptions referred to Smith's presence at the morning voting. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than the first ones in the morning and afternoon, cast their ballots.' Rather, with, respect to the morning she believed that Smith, after the first vote was cast, had walked out after Steiner's request. This testimony, coupled with her more positive statement that in the afternoon Smith was present when the first man voted-that Smith had then "been out and returned after we had finished balloting," convinces the undersigned, and it is found, that Smith was present when the first vote was cast in the morning and in the after- noon and that he then left the room, returning at the end of the two periods of balloting, respectively. It is further found that Smith was not present in the polling place at other times during the balloting. The undersigned also finds that the Company observer, Leed, at the comple- tion of the balloting signed the formal documents of election, including a certi- fication that "the counting and tabulating were fairly and accurately done and that the secrecy of the ballots was maintained and that the results were as indicated ...."' It is further found that Rudolph Fritzhand, president of the Company, came to the polling place in the morning after completion of the balloting while the observers, as well as Steiner and Smith, were still present and that he raised no question on that day as to the place or conduct of the election. There is no evidence that Fritzhand knew or was apprised of the details of the •election that day. CONCLUSIONS AND RECOMMENDATIONS The undersigned has considered the above findings in the light of the principles laid down by the Board for the conduct of elections. The fact that the Company observer apparently believed that the election had been properly conducted has been given due consideration, and an attempt has been made, and unrealistic .standards of all democratic, including the Board, elections. The Board has well stated its duty with respect to the maintenance of election :Standards: In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish these conditions ; it is also our duty to determine whether they have been, fulfilled. When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again. [Matter of General Shoe Corp., 77 NLRB 124.1 In the opinion of the undersigned, regardless of whether the voters in the instant case were able to mark their ballots in the corner of a relatively small room in the presence of Union and Company representatives without the tenor of their vote being known, the conditions were far from those of the "laboratory" referred to by the Board. High standards of election procedure are the keystone of not only the law, administered by the Board but of the entire democratic process. On all the facts of this case it is concluded that the purpose of the Act will be best served by setting the election aside, and it is so recommended. RAMEY DONOVAN, Hearing Officer. SEPTEMBER 1, 1949. ' Hall, one of the Union observers , testified that Smith was present when he came in to vote. He stated that he could not remember whether or not Smith was in the room at any time except when he (Hall ) had first entered . In view of the testimony of other witnesses , particularly Smith's admission that he was in the room while Hall voted, the undersigned was not impressed by Hall's reliability as a witness. . 8 Leed testified that she did not understand the statement , "We acknowledge service ,of this tally."