Semon Bache & Co.

.308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's timecards show that , contrary to her testimony, Lamb worked only 3 days during the entire period from August 29 to September 14. As to Macklin, whom Green said he thought telephoned him to come to the plant , the charge herein and the settlement agreement both indicate that he was discharged by Respondent on August 14, and was not reinstated as an employee until after the settlement agree- ment of September 15. Hence, he could not have been at the plant as an employee during the period in question. Conclusions I am of the opinion and I find, that Catania, Hillary, Lamb, and Green himself are mistaken , or untruthful, in their testimony that Green came to the plant more than once during his 2-week leave of absence , the one exception being the night work performed on September 4. I am convinced that the heavy rainfall which made such an impression on Catania and Green, and which is associated in their testimony with the failure of the time clock , was prior to September. Furthermore, I find difficulty in believing that Green on 2 or 3 occasions would have performed a considerable amount of work for which he was not paid. I con- clude that he was in the plant only once during the 2-week period , and then without Vignola's knowledge. These findings lead me to credit Vignola's testimony that he unsuccessfully at- tempted to contact Green during his leave of absence, when he needed him. More- over, I credit Vignola's testimony that although he knew that Green was associating with union people, and had attended the abortive meeting at the Plantation Cafe, he believed that Green in fact was not in favor of the Union but was cooperating with Vignola in opposing it. Too, I find it somewhat strange that Respondent did not discharge Green at the same time it discharged Macklin and others , if he indeed believed that Green was active in the Union . In sum, I find that Respondent did not discharge Green because of his union activities , but for legitimate business reasons. CONCLUSIONS OF LAW 1. Ace Export Packing Co., Inc., is and at all times relevant herein was engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Electrical, Radio & Machine Workers of America is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in and is not engaging , in any unfair labor prac- tices within the meaning of the Act. [Recommendations omitted from publication.] SEMON BACHE & COMPANY and LOCAL 528, GLASS BEVELERS, MIRROR WORKERS, CUTTERS & MITRE CUTTERS UNION, BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, AFL, PETI- TIONER. Case No. 2-RC-6649. July 22, 1954 Decision and Direction Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on April 9, 1954, under the direction and supervision of the Regional Director for the Second Region, among the employees in the stipulated unit. Upon conclu- sion of the balloting, the parties were furnished with a tally of bal- lots which showed that of approximately 162 eligible voters, 144 cast valid ballots, of which 72 were for the Petitioner, 70 for the Inter- venor,' and 2 for neither participating Union. There were 10 chal- lenged ballots, a number sufficient to affect the results of the election. 1 Semon Bache Employees Association. 109 NLRB No. 41. SEMON BACHE & COMPANY 309 On April 15, 1954, the Petitioner filed timely objections to conduct affecting the results of the election, but on May 19, 1954, requested permission to withdraw the objections. On May 28,1954, the Regional Director granted this request. Thereafter, the Regional Director conducted an investigation of the issues raised by the challenges, and on May 28, 1954, issued his report on challenged ballots, recommending that the challenges to all 10 ballots be overruled and that these ballots be opened and counted. Both the Petitioner and the Intervenor filed timely exceptions to the Regional Director's report. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim 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, as the parties stipu- lated, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act: All produc- tion, maintenance, and distribution employees at the Employer's New York City plant, excluding office clerical employees, professional em- ployees, salesmen, guards, watchmen, and supervisors as defined in the Act. 5. The Petitioner excepts to the Regional Director's findings that seven employees, whose ballots were challenged by the Petitioner, were not supervisors within the meaning of the Act during the period in- volved herein. The Intervenor likewise excepts to the Regional Di- rector's similar findings with respect to three employees whose ballots were challenged by the Intervenor. The Employer urges adop- tion of the Regional Director's report. The Board has considered the Regional Director's report on chal- lenges, and the Petitioner's and Intervenor's exceptions, and hereby adopts the Regional Director's recommendations. Accordingly, we shall overrule the challenges to all 10 challenged ballots and direct that they be opened and counted. [The Board directed that the Regional Director for the Second Region shall, within ten (10) days from the date of this Direction, open and count these ballots and serve upon the parties a supplemental tally of ballots.]