National Truck Rental Co., Inc.

838 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Upon the entire record in this case, including the Union's objections, the-report on objections, and the-Union's exceptions, the Board finds: The Union's principal contention, in effect, is that, for the purpose of defeating the Union's organizing activities, the Employer, prior to the election, contracted out work previously performed by em- ployees in the bargaining unit, and that, in so doing, the Employer coerced, intimidated, and discouraged the employees to such extent that they could not exercise a free choice at the election. Prior to the election, on August 12, 1954, the Union filed an unfair labor practice charge against the Employer based upon the same matters involved in the instant objections case. This charge was dismissed by the Regional Director on August 16,1954. A timely appeal was taken from this dismissal. Thereafter, on October 11, 1954, the General Counsel sustained the Regional Director's dismissal. As the identical allegations before us were made the subject of the Union's unfair labor practice charge, which on appeal was dismissed by the General Counsel, we shall, in accordance with our usual proce- dure, overrule the Union's contentions.' On the basis of the foregoing, and upon the entire record herein, we find that the objections and exceptions of the Union raise no sub- stantial or material issue with respect to the election in this case. Accordingly, as we have overruled the objections, as the challenges are insufficient to affect the results of the election, and as the tally of ballots shows that a majority of the valid ballots has not been cast for the Union, we shall, pursuant to the Regional Director' s recom- mendation, certify the results of election. [The Board certified that a majority of the valid ballots was not cast for Truck Drivers and Helpers Local Union No. 728, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and that the said labor organization is not the exclusive representative of the above employees.] 1 Westchester Broadcasting Corporation, 95 NLRB 1057. NATIONAL TRUCK RENTAL COMPANY, INC. and LOCAL 639, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, AND DISTRICT LODGE No. 67, INnm- NATIONAL ASSOCIATION OF MACHINISTS, AFL (LOCAL 1486), PETI- TIONERS . Case No. 5-RC-1397. November 9, 1954 Second Supplemental Decision and Certification of Representatives On July 23, 1954, pursuant to a Supplemental Decision, Order, and Second Direction of Election issued by the Board in the above-entitled 110 NLRB No. 120. NATIONAL TRUCK RENTAL COMPANY, INC. 839 case,' an election was conducted under the direction and supervision of the Regional Director among employees in the amended appropri- ate unit. Following the election, the Regional Director issued and served upon the parties a tally of ballots, which shows that of the 24 ballots cast in the election 12 ballots were cast for the Petitioners, 11 ballots were cast against the Petitioners, and 1 ballot was declared void and not counted. On July 28, 1954, the Employer filed objections to the election, in which it contended that the ballot held void, which was a "No" vote, was in fact valid, and for the first time questioned the validity of another "Yes" ballot counted as valid, alleging that it had identifying markings upon it. On August 4,1954, after investigation, the Regional Director issued and served on the parties his report on objections to second election, finding the objections without merit. On August 12, 1954, the Employer filed exceptions to the Regional Director's report, and on August 18, 1954, the Petitioners filed a reply to the exceptions. The Board has reviewed the Employer's objections to the election, the Regional Director's report thereon, the Employer's exceptions, and the Petitioners' reply. Upon the entire record in this case, the Board finds as follows : The official counting of the ballots took place on July 23, 1954, im- mediately following the election. At no time during the counting process did either of the parties or their representatives object to the actions of the Board's election agent with respect to his ruling on the one questioned ballot held void, or his counting of the remaining bal- lots found valid, or otherwise. On advice from the Employer's at- torney, however, the Employer's election representative declined to sign the tally of ballots, copies of which were duly served on the parties. On Monday, July 26, 1954, the next working day following the elec- tion, the Employer's attorney requested, and was granted, permission to reexamine the ballots at the Regional Office, in the presence of the Regional Director. On July 28, 1954, the Employer filed its objections, contending (a) that the "No" ballot held void by the Board's agent was in fact valid; and (b) that, in the event that this ballot, found void by the Board agent because it contained an identifying mark, were for the same reason found invalid by the Board, another counted ballot marked "Yes" must now be found invalid because it also contained an identify- ing mark. We have examined the ballot found void by the Board agent and agree with his finding. We have also examined the other ballot to which the Employer's objections call attention. Member Rodgers 1 108 NLRB 1349. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holds that it is unnecessary to rule on the validity of this ballot, find- ing that, since the Employer failed to challenge or otherwise to ques- tion the validity of any ballots at the time they were counted, the Em- ployer's so-called objections, based solely on its subsequent and belated reexamination of the ballots, constitute a post-election challenge, and are therefore untimely? Chairman Farmer and Members Peterson and Beeson disagree with the latter policy as applied to these circum- stances, and would entertain an objection to both ballots and consider the merits of the objections. However, they would find that the ballot marked "Yes," to which the Employer filed the belated exception, is in fact without any identifying mark, and is therefore valid. For the reasons variously stated, the Board hereby overrules the Er4ployer's objections,' and certifies the Petitioners jointly as the exclusive bar- gaining representative of all employees in the appropriate unit. [The Board certified Local 639, International Brotherhood of 'Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and District Lodge No. 67, International Association of Machinists, AFL (Local 1486), as the designated collective-bargaining representa- tive of all employees engaged in maintaining, repairing, and servicing motor vehicle equipment at the Employer's automobile and truck rental establishments in the District of Columbia, and at the Washing- ton National Airport, including auto and truck mechanics, body and fender men, tiremen, washers, porters, servicemen, and helpers ; but excluding office employees, guards, watchmen, and working foremen and other supervisors as defined in the Act.] MEMBER MURDOCK took no part in the consideration of the above Second Supplemental Decision and Certification of Representatives. 2 Oppenheim Collins & Co., 108 NLRB 1257. 3 In view of our decision, we deem it unnecessary to consider the other contentions made with respect to the issues herein raised. The Employer's request for oral argument on its exceptions is denied, as in our opinion the record clearly set forth the positions of the parties. EDWIN D. WEMYSS, AN INDIVIDUAL, D/B/A COCA-COLA BOTTLING COM- PANY OF STOCKTON and INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL No. 439, AFL and STOCKTON BEVERAGE EMPLOYEES ASSOCIATION, SOMETIMES KNOWN AS STOCKTON BEVERAGE ASSOCIATION, PARTY TO THE CONTRACT. Case No. 20-CA-626. November 10, 1954 Determination and Order on Respondent's Motion On January 27, 1953, the Board issued a Decision and Order in the above-entitled proceeding,' finding that the Respondent had formed, 1102 NLRB 586. 110 NLRB No. 134.