Jarez Burns & Sons, Inc.

In the Matter Of JABEZ BURNS & SONS, INC., EMPLOYER and LOCAL 365, UAW-CIO, PETITIONER Case No. -R-7108.Decided January 10, 1947 DECISION AND CERTIFICATION OF REPRESENTATIVES Following the filing of a petition alleging that a question affecting commerce has arisen concerning the representation of employees of the Employer, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, the Employer and the Petitioner entered into a "Stipula- tion for Certification Upon Consent Election," and an election was conducted in accordance with the said stipulation and the Rules and Regulations of the Board. The election was conducted on October 22, 1946, and upon its con- clusion the parties were served with a Tally of Ballots in accordance with the Rules and Regulations of the Board. The Tally shows that of the approximately 99 eligible voters, 97 cast valid ballots, of which 50 were for, and 47 against, the Petitioner; there were 1 challenged ballot and 1 void ballot. On October 26, 1946, the Employer filed objections to the conduct of the election, alleging as follows : 1. The ballot of one, Rovinsky, was commingled with other ballots even though it had been challenged on the ground that Rovinsky was not an eligible voter, having allegedly quit between the eligibility date and the date of the election. 2. The ballot marked void should have been counted as a vote cast in the election for the purpose of determining the Petitioner's majority. On October 30, 1946, the Regional Director, following investigation, issued his Report on Objections in which he found the objections to be without merit and in which he recommended that the objections be overruled by the Board. Thereafter, on November 4, 1946, the Em- ployer filed Exceptions to the Report on Objections, repeating the grounds for its objections and further urging that the challenged ballot listed in the Tally be opened and counted. 72 N. L R. B., No. 5. 18 JABEZ BURNS & SONS, INC. 19 Upon the entire record in the case, including the Stipulation, the Objections, the Report on Objections, and the Exceptions thereto, the Board makes the following : FINDINGS OF FACT A. The Rovinsky ballot The Stipulation provided that "The eligible voters shall be those employees included within the unit, who appear on the Employer's pay roll [for the week ending October 13, 1946] . . . but excluding any employees who have since quit . . . and have not been rehired or reinstated prior to the date of the election." On October 15, 1946, Rovinsky, whose name appeared on the pay roll governing voting eligibility, gave notice to the Employer of his intention to terminate his employment on October 26. On October 22, he appeared at the polls and cast his ballot. Thereafter, he worked through October 26, 1946, before terminating his employment. The Employer argues that Rovunsky was not an employee eligible to vote. The observer for the Employer challenged Rovinsky's ballot at the election. The Board agent present gave his opinion as to the validity of the challenge, and the challenge was withdrawn by the Employer's observer. The Employer admits in its Exceptions that the observer was given the opportunity to press his challenge to Rovinsky's ballot, having been assured that it would be accepted, but chose instead to withdraw it. In view of the failure of the Employer to exercise its power of challenge, it cannot now be heard to object to the-election .1 In any case we find that Rovinsky was eligible to participate in the election. As already indicated, his name appeared on the pay roll de- terminative of eligibility, and he was employed by the Employer at the time of the election. For these reasons, we overrule the Employer's objection with regard to the Rovinsky ballot. B. The void ballot The ballot listed in the Tally as void was unmarked, the voter having failed to indicate whether he wished to vote for or against the Peti- tioner. The Employer argues that in an election in which the name of only one union appears on the ballot, an unmarked ballot must be counted as a "participation" in the election. Thus, it asserts, such a ballot must be counted in determining whether or not the union has received a majority vote. We do not agree. We think that an un- marked ballot must be regarded as a failure to vote by one qualified to do so, and iaust, therefore, be considered as void. We are also of the opinion that only the valid ballots cast should be considered in IN L R. B. v A. J. Tower Co., 67 S. Ct. 324 (December 23, 1946). 20- DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' ascertaining whether or not a union has received a majority vote.' Accordingly, we overrule the Employer's objection with respect to the void ballot. C. The challenged ballot It is clear that the ballot listed in the Tally as challenged cannot affect the results of the election. Therefore, we find it unnecessary to pass upon its validity. D. Conclusions Inasmuch as the Petitioner has received a majority of the valid votes cast plus the challenged ballot, we shall certify it as the exclusive bargaining representative of all the employees in the unit hereinafter found appropriate. 1. A question affecting commerce has arisen concerning the repre- sentation of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All production and maintenance employees of the Employer's plant at 11th Avenue and West 43rd St., New York City, including porter-watchman, but excluding the full-time watchman, all employees of the erecting department, assistants to the production manager, office, clerical, sales and engineering employees, draftsmen, and all super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that Local 365, UAW-CIO, has been desig- nated and selected by a majority of the employees of the above-named Employer in the unit hereinabove found by the Board to be appro- priate, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the Act, said organization is the exclusive representative of all the employees in such unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Certification of Representatives. 2 See Matter of Semi-Steed Casting Company, 66 N. L. it. B. 175, and cases cited therein.