The Ann Arbor Press

In the Matter of ARTHUR J. WILTSE, D/B/A THE ANN ARBOR PRESS, EMPLOYER and BINDERY WORKERS LOCAL UNION No. 20, INTERNA- TIONAL BROTHERHOOD OF BOOKBINDERS , AFL, PETITIONER Case No. 7-RC-397 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES January 31,1950 , Pursuant to a Decision and Direction of Election issued by the Board on August 29, 1949,1 an election by secret ballot was held on September 22, 1949, under the direction of the Regional Director for the Seventh Region at Ann Arbor, Michigan. Upon the conclusion of the election a Tally of Ballots was furnished the parties in accordance with the rules and regulations of the Board. The tally shows that, of approximately 26 eligible voters, 22 cast ballots, of which 11 were for, and 8 against, the Petitioner. Three ballots were challenged. Thereafter on September 27, 1949, the Employer filed Objections to the Conduct of the Election. As the challenged ballots were, if counted, sufficient to affect the results of the election, the Regional Director investigated the challenges and the questions raised by the Employer's objections, and on October 14, 1949, issued and duly served upon the parties his report on the challenged ballots and the Employer's objections. Thereafter the Employer filed timely exceptions to the report on challenges and objections. On November 18, 1949, the Board issued a Notice to Show Cause why it should not incorporate in the record herein a copy of a letter dated September 8, 1949, addressed to the Employer and signed by Myron K. Scott, field examiner, together with an affidavit of service of the original of this letter upon the Employer by the Board's agent, and registered mail return receipt showing receipt of the letter by the Employer. The Employer filed a timely answer to this notice, objecting to the incorporation of the copy of this letter in the record on the ground 85 NLRB No. 165. 88 NLRB No. 15. 391 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that statements made therein are self serving, not under oath, not subject to cross-examination, and are disputed by the Employer. For reasons appearing hereinafter these objections of the Employer are hereby overruled, and the copy of the letter, affidavit of service, and return receipt, are hereby incorporated and made part of the record in this case. Upon the Employer's objections to the conduct of the election, the Regional Director's report on objections and challenges, the Em- ployer's exceptions to the report of the Regional Director, and upon the basis of the entire record, the Board finds: 2 The Challenged Ballots The Regional Director in his report stated that the ballots of Robert Hanselmann, Arthur Peck, Jr., and Rosetta Schneider, had been chal- lenged. He found that Hanselmann had been employed by the Em- ployer as a truck driver, a category which was specifically excluded from the unit found appropriate in the Board's Decision and Direction of Election ; that Peck was employed as a stock cutter in charge of the paper stock and was also specifically excluded from the unit; and that Schneider had been found by the Board to be a supervisor and there- fore was also specifically excluded from the unit. The Regional Di- rector recommended that the challenges to the ballots of these three individuals should be sustained. As no exceptions have been filed to these findings and recommenda- tions, we hereby adopt this portion of the Regional Director's report. We therefore find that Robert Hanselmann, Arthur Peck, Jr., and Rosetta Schneider were ineligible to vote at the election. The chal- lenges to their ballots are hereby sustained. The Objections 1. The Employer objects to the conduct of the election because Howard W. Beatty, whom it appointed as an observer at the election, was not permitted to perform his duties as such observer. The Re- gional Director reported that when the Board's agent, at the polls, learned that Beatty was the Employer's office manager, he informed Beatty that a supervisor might not serve as election observer, and that Beatty thereupon left the polling station. The Employer does not deny that Beatty is its office manager and supervises its office force. ' The Employer excepts to the finding that it had been informed that its observer must be selected from among 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. THE ANN ARBOR PRESS 393 its nonsupervisory personnel. It also contends that such a limitation upon its selection is outside the scope of Section 203.61 of the Board's Rules and Regulations, which provide that any party may be repre- sented by observers "of its own selection," and that, in any event, Beatty had no supervisory authority with respect to the employees entitled to vote in this election. We find no merit in these contentions.. It is the Board's established policy not to permit persons having the status of supervisors- to serve as observers for an Employer at an election.3 That the Employer was duly informed that it might not select a supervisor as observer is shown by the contents of the letter of the Board's field ex- aminer to.the Employer, mentioned above. This letter, dated Septem- ber 8, 1949, was received by the Employer on September 9, 1949,4 Pearly 2 weeks before the election. It reads in part as follows: ... I wish to inform you that you may select an observer to as- sist in the conduct of the election. Such an observer must be selected from among the non-supervisory-employees of your Com- pany. We find that the Employer was given due notice of its rights to be represented by an observer at the election, but chose not to be repre- sented in accordance with the provisions of that notice. 2. The Employer also objects to the conduct of the election on the ground that six employees 5 who were ineligible to vote cast ballots which were counted in the election. The Regional Director reported that three of these employees, Berry, Lolmaugh, and Reed, who voted unchallenged ballots at the election, had been found by the Board to have been discriminatorily discharged from positions within the unit involved in the election, and had been ordered reinstated to these positions.s In its exceptions, the Employer does not controvert this finding but asserts that these three voters were not "employed during the pay-roll period" immedi- 3 See Parkway Lincoln-Mercury Sales Co., Inc., 84 NLRB 475. See also Burrows & Sanborn, Inc., 84 NLRB 304. 4 The Employer does not deny having received the letter above described, but asserts that "such letter cannot now be found, and Employer is uncertain of its precise contents." The registered mail return receipt shows that in fact the Employer's agent acknowledged receipt of the letter on the date set forth above. The Employer objects to the incorporation of the copy of this letter in the record on the ground that, if it is sought thereby to establish an earlier conversation between the Board's field examiner and the Employer, found as a fact by the Regional Director, the letter is not proper proof because it contains self-serving statements, is not under oath, and not subject to cross-examination. We have not, however, incorporated the copy as evidence of any communication extraneous to the letter itself. It is clear that the letter was received by the Employer and that, in itself, it constituted ample notice to the Employer of the Employer's right to be represented by a nonsupervisory employee as an observer at the election. ° Eva Berry, Edward Gayeski, Willa Bessie Falkenburg, Marjorie A..Lolmaugh, Mary Alice Reed , and Robert William Haneslmann. 6 Arthur J. Wiltse, d/b/a Ann Arbor Press, 85 NLRB 58. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ately preceding the Direction of Election, within the meaning of the Board's direction. It is clear, however, that as these employees, having been discriminatorily discharged had been ordered reinstated to their former positions, they remained "employees" of the Employer within the meaning of Section 2 (3) of the Act, as of the eligibility date for voting in the election.7 We therefore find no merit in this objection. The Regional Director found that Gayeski s and Falkenburg, who voted unchallenged ballots in the election, had, been laid off by the Employer on February 2, 1949. He reported that, although there had been additional layoffs on February 2 and at a later date, there had also been a number of reinstatements, which would tend to con- firm the belief of these two employees that they would be recalled if and when business conditions warranted. In its exceptions, the Em- ployer contends that Gayeski and Falkenburg had been permanently laid off, without any expectation of reemployment. We need not, however, resolve this issue. It is clear, as we have found in our dis- cussion of Objection 1, supra, that the Employer was afforded an opportunity to be represented at the election by a proper observer who might have challenged the ballots of these two voters, if the Employer believed that they were not entitled to vote in the election. But the Employer did not do so. The Employer's objection based on their voting of unchallenged ballots in effect constitutes post-election challenges to their ballots, a type of challenge which the Board has repeatedly refused to recognize.9 We find no merit in this objection. The Regional Director found that Hanselmann did not in fact cast an unchallenged ballot, but that his ballot was challenged as set forth in our discussion of the challenged ballots, supra. No exception has been filed to this finding, and we hereby adopt it. As we have found that Hanselmann was ineligible to vote in the election, and have sus- tained the challenge to his ballot, we find no merit in the objection. 3. The Employer also objects that because of the lateness of the opening of the polls, employee Cecil Wilson was unable to cast his ballot. The Regional Director found that there was a 5 to 8 minute delay in opening the polls, because the Board agent could not locate the key to the municipal polling station where the election was sched- 7 Sioua, City Brewing Company, 85 NLRB 1164 . See also, N. L. it. B. v. Cape County Milling Company, 140 F. 2d 543 (C. A. 8). It may also be noted that the Employer's objection to the ballots of Berry, Lolmaugh, and Reed constitutes post-election challenges , and hence are without merit for the further reasons stated in our discussion of the objection to the ballots of Gayeski and Falkenburg, infra. 8 Spelled "Jayeski" in the Regional Director's Report. 9 N. L. R . B. v. Tower Company, 329 U. S. 324 . See also N. L. it. B. v. Worcester Woolen Mills Corp., 170 F. 2d 13 ( C. A. 1), cert. den . 336 U. S. 903 ; E. W. Bliss Company, Toledo Works, 77 NLRB 1Q80. THE ANN ARBOR PRESS 395 uled to take place. He found that Wilson did present himself at the polls, but was unwilling to complete the execution of an affidavit such as was required of all voters in the election 10 The Employer, in its exceptions, asserts that Wilson was unable to vote because there re- mained insufficient time for him to vote and still catch a ride to his home about 20 miles distant. As Wilson's ballot alone cannot affect the results of the election, we find it unnecessary to determine the issue thus raised. 4. The Employer further objects to the election because employee Alma Bangs was ill and unable to go to the polls, and no provision was made for her to cast a ballot at her home. The Regional Director reported that she was in fact on leave of absence because of illness. As it is the Board's practice, where elections are manually conducted, to require eligible employees to present themselves in person at the polls, we find no merit in this objection 11 Conclusion As we have found no merit in the Employer's objections, except that relating to the failure of employee Wilson to cast a ballot, we shall direct that the objections, with such exception, be, and they hereby are, overruled. As the Tally of Ballots shows that the Petitioner has secured a majority of the valid votes cast in the election, and as the casting of a ballot by employee Wilson would have been insufficient to affect the result of the election, we shall certify the Petitioner as the bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that the Bindery Workers Local Union No. 20, International Brotherhood of Bookbinders, AFL, has been desig- nated and selected by a majority of the Employer's bookbinding de- partment employees at its Ann Arbor, Michigan, plant, including binding machine operators, gatherers, inserters, paper cutters, folding machine operators, shipping clerks, and stockmen, but excluding truck 10 The Regional Director reported that affidavits , to verify the eligibility of each prospec- tive voter, were resorted to because the Employer refused to cooperate by furnishing a payroll list. The Employer excepts , contending that a payroll list was not requested by the Board, and that the Employer did not refuse to furnish it. In view of our disposition of the objection , above set forth , we need not determine this Issue. 11 The Employer also excepts because its objections were investigated by the Board agent who had conducted the election , and because It was Informed by several employees in the unit that a majority of the employees actually were opposed to representation by the Petitioner. As to the former exception , it does not appear that any prejudice to the Employer has resulted from the manner in which the investigation was conducted. As to the latter , the Board finds that the votes of the employees by secret ballot are the best evidence of their preference. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers, maintenance employees, janitors, the stock cutter in the stock- room, guards, and all supervisors as defined in the Act, as their repre- sentative for the purposes of collective bargaining and that pursuant to Section 9 (a) of the Act, the aforesaid organization is the exclusive representative of all such employees for the purpose of collective bar- gaining with respect to rates of. pay, wages, hours of employment, and other conditions of employment.