Tyre Brothers Glass & Paint Co.

In the Matter of TYRE BROTHERS GLASS & PAINT COMPANY, EMPLOYER and DISTRICT #94 FOR ITS LOCAL LODGE #1186, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER Case No. 21-RC-810 SUPPLEMENTAL DECISION AND DIRECTION January 11, 1950 Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board on August 26, 1949,1 an election by secret ballot was conducted on September 16, 1949, under the direction and supervision of the Regional Director for the Twenty-first Region, among the employees of the Employer in the unit found appropriate by the Board. Following the election, the parties were furnished with a Tally of Ballots which showed that three valid ballots were cast, of which two were for, and one was against, the Petitioner, and that 2 two challenged ballots were cast 3 On September 22, 1949, the Peti- tioner filed Objections to 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 Petitioner's objections, and, on November 23, 1949, issued and duly served upon the parties his Report on Challenges and Objections to Election. The Regional Director recommended that one ballot be opened and counted, as the Petitioner's challenge to it had been withdrawn. He further recommended that, if the opening of this ballot should not prove determinative, the hearing in this pro- ceeding should then be reopened to take testimony as to the propriety of opening and counting Arthur Dodd's ballot, which was challenged 1 85 NLRB 910. a The fifth ballot was cast by Arthur Dodd, who was excluded from the unit in the Board's Decision. 3 There were originally three challenged ballots, but one challenge was resolved by the parties agreeing that the Individual in question was not eligible to vote. We therefore agree with the Regional Director 's recommendation that this ballot be deemed to be void. 88 NLRB No. 46. 65 1 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Employer, and also as to the merits of the Petitioner's objections regarding certain conduct of the Employer. On November 30, 1949, the Employer filed Exceptions to Report on Challenges and Objections to Election, contending: (1) That the Petitioner is estopped from now showing that Arthur Dodd, who cast the second challenged ballot, should be included in the unit because it presented no evidence as to this voter at the hearing, and made no claim that he should be permitted to vote until the time of the balloting; (2) that the facts disclosed by the investigation of the Regional Director show that Dodd should be excluded from the unit; and (3) that statements of the Employer which are alleged by the Petitioner in its objections to have improperly affected the outcome of the election amounted to no more than a lawful expression of opinion. The Petitioner alleges that the true facts with respect to the eligibil- ity of Dodd were not before the Board at the hearing. Under these circumstances, we do not agree with the Employer's contention that the Petitioner would, at any possible rehearing, be estopped from showing these facts 4 We therefore find no merit in the Employer's first contention. Nor do we find any merit in the other contentions, the substance of which is that the facts are other than those indicated by the investigation of the Regional Director. As this conflict can best be resolved, if resolution thereof becomes necessary, by reopening the hearing, we find the Regional Director's recommendation in this respect proper. Because issues of fact are raised by the Petitioner's objections and by the Employer's exceptions with respect to Dodd's ballot, we shall at this time make no determination regarding its validity. We shall direct that the ballot of William H. Thomas, the challenge to which has been withdrawn, be opened and counted. If, after the Supple- mental Tally of Ballots is prepared, it is found that the ballot of Arthur Dodd can affect the outcome of the election, we shall then order a hearing to resolve the issues of fact with respect to his voting eligibility and to the Employer's acts in connection with the election. DIRECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Tyre Brothers Glass & Paint 4 See United States Gypsum Company, 85 NLRB 162 , where the Board, after the issuance of Its Decision , ordered a rehearing on the question of the supervisory status of certain Individuals ; see also Lykens Hosiery Mills, Inc., 82 NLRB 981, where the Board held that even a stipulation by the parties will not preclude the Board , subsequent to the hearing, from determining the facts relating to the eligibility of a voter. TYRE BROTHERS GLASS & PAINT COMPANY 67 Company, Los Angeles, California, the Regional Director for the Twenty-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 ballot of William H. Thomas, and thereafter cause to be served upon the parties a Supplemental Tally of Ballots, including therein the count of this ballot. MEMBER REYNOLDS took no part in the consideration of the above Supplemental Decision and Direction. 882191-51--G