Burnham Corp.

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of all the votes cast in the election, we shall dismiss the peti- tion. Direction IT Is HEREBY DIRECTED that as part of the investigation to ascertain representatives for purposes of collective bargaining with the Em- ployer, the Regional Director for the Fifth Region shall, pursuant to the Rules and Regulations of the Board, within 10 days from the date of this Direction, open and count the ballots of the voters listed in Appendix A attached hereto, and thereafter prepare and serve upon the parties a supplemental tally of ballots, including therein the count of said challenged ballots. Appendix Fadeeri Bullin Frances Grubb Golda Powell Annie Briggs Shula Fritts William T. Ward W. S. Cox B. C. Howlett Etta Canterbury Goldie Duncan Sara Dyer Nona Eddins Exie Ennis Carrie Fagg Lillian Frank Essie Julledge Grace Hackler Lettie Hawks A Hazel Hicks Mattie Lewallen Minnie Koonce Hazel Messinger Rosa Potts Cletus Southern Hazel Staton Mary Tucker Katherine Vickers Mary Wilson Mildred Barrow Bessie Myers Mary J. Smith Maxine Turner James Eller Quentin Anderson Paul Bullock Gertrude Valentine BURNHAM CORPORATION and LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONER. Case No. 9-RC-4080. May 29,1952 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board on February 8, 1952,1 an election by secret ballot was conducted on March 5, 1952, under the direction of I Not reported in printed volumes of Board decisions. 99 NLRB No. 72. BURNHAM CORPORATION 429 the Regional Director for the Second Region, among the employees of the Employer in the unit found appropriate by the Board. At the close of the election, the parties were furnished a tally of ballots. Of the three ballots cast in the election, two were challenged. As these challenged ballots were sufficient to affect the result of the election, the Regional Director conducted an investigation and, thereafter, on April 2, 1952, issued and served upon the parties his report on chal- lenged ballots. In this report, the Regional Director recommended that the challenge to the ballot cast by Oscar Peterson be overruled and that the challenge to the ballot cast by Robert A. Lewis be sus- tained? The Employer thereafter filed exceptions to the Regional Director's determination with respect to the ballot cast by Lewis. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. [Chairman Herzog and Members Houston and Styles]. As no exceptions were filed to the Regional Director's recommenda- tion that the challenge to Peterson's ballot be overruled, we shall adopt that recommendation. With respect to the challenged ballot cast by Lewis, the Regional Director's investigation discloses the following undisputed facts : a Robertine, Peterson, Lewis, and one Howard Smith, who did not vote, are the only employees of the Employer who are classified as truck drivers. During 1951, 90 percent of Smith's time, 86 percent of Peter- son's time, and 65 percent of Robertine's time were spent in truck- driving. During this same period, Lewis was engaged in truck driv- ing 35 percent of the time. The latter figure includes 13 percent spent in making local trips to and from the post office, railway express station, and air express terminal. These local trips are not made by the other three employees classified as truck drivers. When Lewis is not driving trucks, he works in the shipping and receiving depart- ment loading and unloading trucks, delivering material to the shop, by hand truck, and doing whatever other tasks are assigned. The Regional Director's recommendation that the challenge to, Lewis' ballot be sustained rests on the finding that "Lewis is not a truck driver within the meaning of the Board's Decision and Direction of Election." 4 In arriving at this conclusion, the Regional Director regarded as controlling the fact that Lewis is engaged in truck driving z The Regional Director also reported that the unchallenged ballot cast in the election by Steve Robertine was not opened and counted after the election , "because to have done so would have destroyed the secrecy of his ballot and would not have determined the result of the election " ' For the reasons appearing hereinafter, we deem it unnecessary to direct a hearing in this case for the purpose of taking testimony on the other factual matters mentioned in the Employer 's exceptions. 4 The unit therein found appropriate was "All truck drivers employed at the Employer's Irvington , New York, plant , excluding all other employees and all supervisors as defined' in the Act." 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity less than half of his working time and spends 13 percent of his total working time making local trips, an assignment also per- formed by the packer-checker, but not by the other employees classified as truck drivers. However, we are unable to agree with the disposition recommended by the Regional Director. Apart from other considera- tions, as Lewis is classified as a truck driver, the category embraced by the unit, and spends a substantial part of his time working as a truck driver, we find that to the extent that Lewis is engaged in truck driving work he is entitled to representation as part of the truck drivers' unit heretofore found appropriate 5 and that he has a; suf- ficient interest in the terms and conditions of employment within that unit to vote in the elections Contrary to the Regional Director's recommendation, therefore, we shall overrule the challenge to Lewis' -ballot and order it to be opened and counted. IT IS HEREBY ORDERED that the challenges to the ballots of Oscar Peterson and Robert A. Lewis be, and they hereby are, overruled. IT IS HEREBY DIRECTED that as part of the investigation to ascertain, representatives for the purposes of collective bargaining with Burn- ham Corporation, at its Irvington, New York, plant, among the em- ployees in the unit set forth in the paragraph numbered 4 of the .Decision and Direction of Election issued by the Board on February 8, 1952, the Regional Director for the Region in which this case was heard 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 Oscar Peterson and Robert A. Lewis, together with the ballot of Steve Robertine, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of the afore-mentioned ballots. 6 Cf. Foremost Dairies, Inc., 98 NLRB No. 38; Foreman & Clark, Inc, 98 NLRB 530; Falstaff Dxstrabvtang Co., 97 NLRB 997. 6 The Ocala Star Banner, 97 NLRB 449. EDWARD SHANNON, C. W. SHANNON , AND ARTHUR F. SIMPSON, JR., A PARTNERSHIP D/B/A SHANNON & SIMPSON CASKET COMPANY and UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL #15. Case No. 21-CA-916. June 2, 1952 Decision and Order On September 21, 1951, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unf air labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the 99 NLRB No. 62.