Earl Fruit Co.

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EARL FRUIT COMPANY and UNITED FRESH FRUIT AND VEGETABLE WORKERS, LOCAL INDUSTRIAL UNION NO. 78, CIO, Petitioner . Case No. 20 -RC-1874. November 16, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election 1 issued by the Board on October 24, 1954, anelectionby secret ballot was conducted on July 28 , 1953, among the employees at the Em- ployer ' s pear packing shed in Walnut Grove, California, in the unit found appropriate in the Decision . At the conclusion of the election, the Regional Director furnished the parties with a tally of ballots , which showed that of approximately 86 eligible voters, 39 cast ballots for, and 45 cast ballots against, the Petitioner and that 1 ballot was void. On August 3, 1953, the Petitioner filed timely objections to conduct affecting the results of the election , alleging (a) that the Employer ' s observer at the election was a supervisor as defined in the Act, and therefore disqualified from acting in such capacity; (b) that the Employer transported three former employees to the plant to vote; and (c) that the Employer mis- represented the payroll list to the Petitioner and caused per- sons other than shed employees to enter the plant for the purpose of voting. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation , and on September 3, 1953, issued and duly served upon the parties his report on objections . In this report , the Regional Director found that the Employer's observer at the election, a receiver - checker, was a supervisor as defined in the Act, and, therefore, concluded that objection (a) raised material and substantial issues with respect to the election , and recommended that the Board sustain the objection and set aside the election . In view of this conclu- sion, the Regional Director found it unnecessary to consider objections (b) and (c). On September 11, 1953, the Employer filed timely exceptions to the Regional Director ' s report and to his recommendation that the election be set aside. With respect to objections (b) and (c), the Petitioner chal- lenged no voters as being ineligible . Its belated objections on this score are in the nature of post-election challenges and will not be entertained.2 With respect to objection ( a), the Petitioner objected imme- diately before the election to the use of the receiver -checker as the Employer ' s observer on the ground that he was a super- visor . The Employer denied that the receiver - checker was a supervisor and declined to withdraw him as its observer. The Petitioner thereupon withdrew its objection . The Board's agent, I Not reported in the printed volumes of Board decisions. 2 Calcor Corporation, 106 NLRB 539. 107 NLRB No. 1 INTERNATIONAL METAL PRODUCTS COMPANY 65 who was charged with the proper conduct of the election, acquiesced, and did not pursue the matter further . On the basis of the present record we are not able to determine the status of the receiver -checker and his eligibility to serve as an observer in a Board-conducted election . The Employer's packing season , moreover, is too short to make an adequate investigation and determination of the issue , and to conduct another election. Accordingly, under all the circumstances, the Board concludes it would not effectuate the policies of the Act to set this election aside. 3 Because no labor organization won the election , we shall therefore issue a certification of results of election to that effect. This action, however , is without prejudice to the Peti- tioner to file a new petition for representation and certification of representatives prior to the time when the 1954 packing season opens.4 [The Board certified that a majority of the valid ballots was not cast for United Fresh Fruit and Vegetable Workers, Local Industrial Union No. 78 , CIO, and that this labor organization is therefore not the exclusive representative of the employees of the Employer in the unit heretofore found appropriate.] Member Murdock took no part in the consideration of the above Supplemental Decision and Certification of Results of Election. SChairman Farmer would overrule this objection on the ground that the Union waived its right to object by withdrawing its objection prior to the election. 4 We consider that the 39 ballots cast for the Petitioner in the recent election constitute a sufficient showing of interest among employees in the appropriate unit to support the enter- tainment of a new petition. ADAM D. GOETTL AND GUST GOETTL, d/b/a INTERNA- TIONAL METAL PRODUCTS COMPANY' and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner. Case No. 21-RC-3187. November 16, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed , a hearing was held before Floyd C. Brewer, hearing officer. The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 1 The Employer 's name appears as amended at the hearing. 107 NLRB No. 23.