Stationers Corp.

STATIONERS CORPORATION 601 and only 10 to 50 percent of their time on the other two shifts. The latter estimates, however, include the time necessary for the main- tenance of water pumps, which are electrically powered. One sub- stitutes for the maintenance electrician at the Madison plant on the latter's day off each week, and also serves as "utility man" 1 day each week, doing both electrical and mechanical maintenance. These employees are not covered by any apprenticeship program, and it does not appear that they are required to possess any high degree of electrical skill. Certainly, their duties do not require them to exercise the gamut of skills usually required of maintenance electri- cians. Moreover, most of their time is spent in nonelectrical work of the type ordinarily performed by switchboard operators, who are excluded from the voting group of skilled electrical craftsmen here being considered. In view of the foregoing, we conclude that, de- spite the job title applied to these employees by the Employer, their duties do not warrant their inclusion in the voting group described in the original decision. Accordingly, we find that they are not eligible to vote in the election? [Text of Second Direction of Election omitted from publication in this volume.] MEMBERS MURnooK and STYLES took no part in the consideration of the above Supplemental Decision and Second Direction of Election. 1 Armstrong Cork Company, 89 NLRB 296 ; Bunker Hill and Sullivan Mining and Con- centrating Company, 89 NLRB 243 , 249; National Distillers Products Corporation, 84 NLRB 818. STATIONERS CORPORATION and WAREHOUSE, PROCESSING & DISTRIBUTION WORKERS UNION, LOCAL 26, INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, PETITIONER. Case No. 21-RC-1375. De- cember 19, 1951 Decision, Direction, and Order On July 14, 1950, an election was conducted under the supervision of the Regional Director for the Twenty-first Region of the National Labor Relations Board pursuant to the provisions of a stipulation for certification upon consent election, dated July 7, 1950. Following the election, the parties were furnished a tally of ballots. The tally shows that, of the 90 eligible voters, 38 cast ballots for the Petitioner, 41 cast ballots against the Petitioner, and 11 ballots were challenged. As the challenged ballots were sufficient in number to affect the re- sults of the election, the Regional Director, pursuant to the Board's Rules and Regulations, conducted an investigation and, on September 15, 1950, issued and served upon the parties a report on challenged 97 NLRB No. 86. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballots. In his report, he made no recommendation as to the dispo- sition of any of the 11 challenged ballots, but recommended that the matter be consolidated for hearing with Cases Nos. 21-CA-818 and 21-CA-859 which alleged, inter alia, that 7 of these 11 persons had been discriminatorily discharged.' Thereafter, on September 25, 1950, the Employer filed exceptions opposing the consolidation. The Board did not accept the Regional Director's recommendation. On September 17, 1951, the Board issued its Decision and Order in Cases Nos. 21-CA-818 and 21-CA-859 2 in which it found, inter alia, that the aforesaid 7 persons were discharged in violation of Section 8 (a) (3) of the Act. On September 28, 1951, the Board directed the Regional Director to prepare, issue, and serve upon the parties a sup- plemental report on challenged ballots. Thereupon, in accordance with the Board's order, the Regional Director issued, and duly served on the parties, a supplemental report on challenges dated November 6, 1951. And, on November 15, 1951, the Employer filed exceptions. Upon the basis of the entire record in this case, the Board 3 makes the following : FINDINGS OF FACT 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All warehouse employees and truck drivers at the Employer's Los Angeles, California, plant, excluding watch- men, guards, professional employees, and supervisors as defined in in the Act. The Challenged Ballots In his supplemental report, the Regional Director found, as to the four persons challenged as supervisors, that Norman Burbank, Joseph Sanchez, and Bert Stuart were not supervisors within the meaning of the Act, but that William Kennoy was. The Regional Director recom- mended that the ballots of Burbank, Sanchez, and Stuart be opened and counted. The Regional Director also recommended that the bal- I The complaint cases did not relate to the remaining four individuals who were chal- lenged by the Petitioner on the ground that they were supervisors. 2 96 NLRB 196. $ 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 [ Members Houston, Murdock, and Styles]. STATIONERS CORPORATION 603 lots of John McCormick, Robert Philipp, Joseph Prulitzky, Jessie Wagner, Emmett Allen, Eugene Young, and Carl W. Raggio, Jr., challenged by the Employer, be opened and counted in view of the Board's findings that these seven employees were illegally discharged in violation of Section 8 (a) (3) of the Act and thus were employees at the time of the election. As no exceptions to the supplemental report on challenges have been filed with respect to the challenged ballots of Norman Burbank, Joseph Sanchez, and Bert Stuart, we hereby adopt the Regional Director's recommendation that the challenges to their ballots be overruled. The Employer takes exception to the Regional Director's recom- menda1ion that the ballots, of John McCormick, Robert Philipp, Joseph Prulitzky, Jessie Wagner, Emmett Allen, Eugene Young, and Carl W. Raggio, Jr., be opened and counted. The Employer argues that such action is premature because it does not intend to comply with the Board's order in Cases Nos. 21-CA-818 and 859, and therefore, on an enforcement action in the United States Court of Appeals, the Board's order may be set aside and any prior certification by the Board would be a nullity. However, the findings in the said De- cision and Order as to these seven individuals are cognizable by the Board in this proceeding and are treated as administratively deter- mined and binding upon the Employer unless and until they are set aside by a court of competent jurisdiction.4 We see no reason for acting here on the assumption that the Decision and Order may not be sustained by the courts. Accordingly, we shall overrule the chal- lenges to these seven ballots. As already noted, the Regional Director found, upon the basis of his investigation, that William Kennoy was a supervisor at the time of the election and recommended that his ballot not be counted. In its exceptions, the Employer raises material issues of fact as to his supervisory status. Inasmuch as the counting of the 10 ballots, the challenges to which are hereby overruled, may determine the results of the election, we shall direct that they be opened and counted. We shall also direct that, in the event that the above 10 ballots, when opened and counted, do not determine the results of the election, a hearing be held to de- termine whether or not William Kennoy was a supervisor at the time of the election. Direction IT IS HEREBY DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with the 4 Cf. Keystone Steel & Wire Company , 65 NLRB 274 ; Johnson Bronze Company, 59 NLRB 957; New Idea, Inc., 25 NLRB 265. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer, the Regional Director for the Twenty-first Region shall, pursuant to National Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Norman Burbank, Joseph Sanchez, Bert Stuart, John McCormick, Robert Philipp, Joseph Prulitzky, Jessie Wagner, Em- mett Allen, Eugene Young, and Carl W. Raggio, Jr.; and thereafter prepare and cause to be served upon the parties a supplemental tally of ballots, including therein the count of the challenged ballots. Order IT IS HEREBY ORDERED that, in the event the ballots of Norman Bur- bank, Joseph Sanchez, Bert Stuart, John McCormick, Robert Philipp, Joseph Prulitzky, Jessie Wagner, Emmett Allen, Eugene Young, and Carl W. Raggio, Jr., when opened and counted, do not determine the results of the election, a hearing be held to determine whether or not William Kennoy, whose ballot was challenged in the aforesaid election, was a supervisor at the time of the election. IT Is FURTHER ORDERED that, in the event a hearing is held, the hearing officer designated for the purpose of conducting the hearing shall pre- pare and cause to be served upon the parties a report containing resolu- tions of the credibility of witnesses, findings of fact, and recommenda- tions to the Board as to the disposition of the said challenge. Within ten (10) days of receipt of such report, any party may file with the Board in Washington, D. C., an original and six copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing shall serve a copy thereof upon each of the other parties, and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendation of the hearing officer. IT IS FURTHER ORDERED that, in the event a hearing is held, the above- entitled matter be, and it hereby is, referred to the said Regional Director for the purposes of such hearing, and that the aforesaid Regional Director be, and he hereby is, authorized to issue early notice thereof. THE ADVERTISER COMPANY, INC. and AMERICAN NEWSPAPER GUILD, C. I.O. Cases Nos. 15-CA-232 and 15-CA-244. December 20,1951 Decision and Order On February 19, 1951, Trial Examiner John Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 97 NLRB No. 90.