Everbest Engineering Corp.

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Petitioner has not fulfilled its obligation to present timely evi- dence in support of its objection, the Board will not consider such ob- jection 4 Moreover, this objection is in the nature of a post-election challenge which, as a matter of policy, the Board will not entertain." Accordingly, we shall, in agreement with the Regional Director, overrule the objections. As we have overruled the Petitioner's objections, and as the tally of ballots shows that no collective bargaining representative has been chosen, we shall dismiss the petition. Order IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed. ° See Southern Wood Preserving Co., supra. See John Deere Kiilefer Co.. 86 NLRB 1073. EVERBEST ENGINEERING CORP. and AMALGAMATED MACHINE, INSTRII- MENT AND METAL LOCAL 475, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, PETITIONER. Case No. O-RC-3500. July 18,1952 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election issued by the Board on June 26, 1951,1 an election by secret ballot was conducted on July 19, 1951, under the direction and supervision of the Regional Director for the Second Region, among the employees in the unit found appropriate in said Decision. Following the election, the parties were furnished a tally of ballots which shows that there were approximately 70 eligible voters and that 67 ballots were cast, all of which were challenged. These challenges are, of course, sufficient in number to affect the results of the election. Thereafter, the Regional Director investigated the issues raised by the challengers, and on April 30, 1952, issued his report on challenges, in which he recommended that the challenges to the ballots of 41 voters be sustained, and that the challenges to the remaining 26 ballots be overruled. The Petitioner filed exceptions to the report on challenges. The mass challenges in this case are explained by the fact that at the time of the election there were pending against the Employer unfair labor practice charges which put in issue the eligibility of all I Unpublished. 100 NLRB No. 47. EVERBEST ENGINEERING CORP. 265 the persons who cast ballots. The individuals who cast the 67 chal- lenged ballots fall into 3 categories, (1) a group of 17 former em- ployees laid off on March 30, 1951, and subsequently discharged on April 16, 1951; (2) a group of approximately 29 employees who went out on strike on April 2, 1951, and failed to return to work after appropriate notice by the Employer on April 2 and 3, 1951; and (3) a group of 26 employees who were on the Employer's payroll as of the eligibility date established by the Board's Decision and Direction of Election, and at work on the date of the election. None of the individuals in groups (1) and (2) was on the Employer's payroll at the time of the election, July 19, The then pending charges filed by the Petitioner on May 28, 1951,2 alleged that the Employer had unlawfully discriminated against the employees in groups (1) and (2) by refusing to reinstate them. After duly investigating the charges, the Regional Director, on November 23, 1951, refused to issue a complaint. Upon appeal by the Petitioner, the General Counsel, on February 18, 1952, upheld the Regional Director's determination. As the General Counsel concluded that there was insufficient evidence to support the' Petitioner's allegation of discrimination respecting the employees in groups (1) and (2), the necessary effect of his finding is that they were no longer employees of the Employer at the time of the election. The burden of the Petitioner's contention in this proceeding, in which it asserts the eligibility 'of these same per- sons, is that they were employees on that date. But, as the Board has heretofore held, in a representation proceeding we may not reach a conclusion tantamount to an unfair labor practice finding diametri- cally opposed to the conclusion reached by the General Counsel on the same set of facts, and, indeed, upon virtually the same investiga- tion.' We conclude, therefore, as we must, and in agreement with the Regional Director, that the employees in groups (1) and (2)- listed on schedule A attached hereto-were not eligible to vote in the July 19, 1951, election. Accordingly, we hereby sustain the challenges to their ballots. The employees in group (3) were employed at the time of the election and met the eligibility requirements set out in the Direction of Election. The Petitioner attacks their eligibility on the ground that they were hired only as temporary replacements for the strikers. However, the above finding by the General Counsel, that the strikers were not unlawfully denied reinstatement, effectively and conclusively rebuts this assertion. Like the Regional Director, therefore, we find that the employees in group (3) -listed on schedule 2 2-CA-1980. 3 Times Square Stores Corporation , 79 NLRB 361. 266 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD B attached hereto-were eligible, voters and we hereby overrule the challenges to their ballots. Accordingly, we shall direct that the ballots be opened and counted. Direction As part of the investigation to ascertain representatives for the purposes of collective bargaining with Everbest Engineering Cor- poration, New York City, the Regional Director for the Second Region shall, pursuant to the Rules and Regulations of the Board, within ten (10) days from the date of this Direction, open and count the ballots of the 26 employees listed in schedule B attached hereto, and thereafter prepare and cause to be served upon the parties a supple- mental tally of ballots, including the count of said challenged ballots. MEMBERS STYLES and PETERSON took no part in the consideration of the above Supplemental Decision and Direction. Schedule A Alexander, Kathleen Morales, Carmen Callazo, Carmen Barron, Carmen Morris, Helen Daniels, Florence Clancy, Victoria Murray, Allene Fanizza, Josephine Colon, Teresa Pacheca, Rosa Laboy, Luz Dembo, Clifton Rehfeldt, Helen Lopez, Diana Dembo, Russell Rivera, Illuminada Ramos, Vincentia Driscoll, Agnes Rodriguez, Inez Rivera, Anna Guidice, Caroline Roman, Rosalie Santiago, Enriquita Horton, Etta (quit 4/ Sandy, Caroline Savino, Anna. 13/51) Solgado, Carmen Tellado, Josefa Jackson, Sophie Thurston, Lena Torres, Nina LaBoy, Miquel White, Carrie Walker, Rose Macaya, Rosa Brunette, Carmen Wells, Virginia Miranda, Giullermina Brunette, Georgina Young, Carrie Schedule B Virginia Austin Angela Felix Augustine Rivera Edgar Bonilla Ethel Fisher Mario Rivera Santiago Bonilla Janie Harris Esmiralda Rodriquez Elma Brandon John Kerr Vera Serdeczny Virginia Brewington Loner Lang Thelma Swann Annette Caputo Aurea Maldonada Dora Torres Mary Castello Eddie Nater Emily Traina Olga Corcoron Aracelis Negron Ross Winfield Basilio Cubi Gerhardt Follack