Bon Tool & Die Co.

BON TOOL & DIE COMPANY 103 of these employees should be sustained and the Petitioner certified are therefore adopted. Accordingly, the Employer's objections are hereby overruled. [The Board certified Oil, Chemical & Atomic Workers Inter- national Union, AFL-CIO, as the collective-bargaining representative of the employees of the Employer in the unit found appropriate.] Joseph Bonifert and John Bonifert, d/b/a Bon Tool & Die Com- pany and Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL-CIO, Petitioner. Case No. 13- RC-4568. January 18,1956 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election ex- ecuted October 5, 1955, an election was conducted on October 11, 1955, under the direction and supervision of the Regional Director for the Thirteenth Region, among certain employees of the Employer. At the close of the election, a tally of ballots was furnished each of the parties in accordance with the Board's Rules and Regulations. The tally shows that 7 valid ballots were cast for the Petitioner, 7 valid ballots were cast against the Petitioner, no ballots were challenged,. and 1 ballot was declared void. On October 13, 1955, the Petitioner filed timely objections to the conduct of the election. On November 3, 1955, the Regional Direc tor, after investigation, issued his report on the objections recommend- ing that the objections be overruled and that a certification of results of election be issued herein. On November 10, 1955, the Petitioner filed exceptions to the Regional Director's report. The Board has considered the objections, the Regional Director's report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Regional Director, with the following additions : 1. The Employer is engaged in commerce within the meaning of Section 2 (6) of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- 115 NLRB No. 18. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of Section 9 (b) of the Act: All production and maintenance em- ployees at the Employer's River Grove, Illinois, plant, excluding office clerical employees, plant clerical employees, guards, professional employees, and supervisors as defined in the Act. 5. The Petitioner's objections to the election are based upon the following allegations : The Board Agent erred in voiding a ballot which contains a clear and unequivocal mark running diagonally from corner to corner in the "Yes" box. In the "No" box there appears a single line, running from the upper right-hand corner and partially to the lower left-hand corner. The cross in the "Yes" box ap- peared to be traced over for emphasis. It is therefore quite ob- vious that this ballot discloses the clear intent of the voter and the line in the "No" box should not be a mark. The pencil used in the polling place was not equipped with an eraser. We, therefore, urge the Board to overrule the action of the Board Agent in declaring said ballot void and order this ballot be ruled valid as a "yes" vote and issue Certification of Represent- atives of the employees in this unit to the Petitioner. The Petitioner bases its exceptions, in substance, on the arguments that : (1) The Board's decision in H. M. Harper Company, Case No. 13-RC-4334,1 is controlling here; and (2) the Regional Director's recommendation here is inconsistent with his recommendation in the Harper case. We find neither of these arguments sufficient to sustain the objections. The Board did not consider the Regional Director's recommendation in the Harper case on its merits, but only adopted such recommendation in the absence of any exception thereto. Accordingly, that decision is not "controlling" here, and it is unnec- essary for us to consider the alleged inconsistency between this case and the Harper case. Moreover, in a case cited by the Regional Director,2 the Board found that a ballot, which was marked like the one here,' was not so marked as to reveal a clear intent, and therefore that the ballot was void. The Petitioner also contends, in substance, that a clear intent was expressed, because the ballot states "Mark An `X' In The Square of Your Choice," and the only "X" marked was in the "Yes" box. How- ever, as pointed out by the Regional Director, the ballot and the sample ballot in the notice of election also stated "If you spoil this ballot return it to the Board Agent for a new one." In our opinion, it ' Not reported in printed volumes of Board's Decisions and Orders. a Iroquois Chang Company , 55 NLRB 290 , 290-1. 3 The Petitioner states that the single line in the "No" box in the instant case runs only "partially" from one corner to another. However, this "partial" line runs from one corner almost completely to another, and is thus substantially the same mark as the com- plete "corner to corner" single line in the "No" box in the Iroquois case MASON CAN COMPANY 105 should have been clear to the voter, in the light of both of these state- ments, that he had "spoiled" his ballot. And if, as further alleged by the Petitioner, there was no eraser on the voter's pencil to eradicate the spoilage, he should have obtained a new ballot in order to cast a clear vote. Accordingly, we find, no mitigating circumstances to render the ballot valid. In view of the foregoing, we adopt the Regional Director's recom- mendations that the Petitioner's objections be overruled, and that a certification of results of election be issued. [The Board certified that a majority of the valid ballots was not cast for Die and Tool Makers Lodge No . 113, International Association of Machinists, AFL-CIO, and that said Union is not the exclusive repre- sentative of the employees in the unit heretofore found to be appropriate.] Mason Can Company and Mason Can Employees Independent Union,' Petitioner.' Cases Nos.1-RC-4 01 and 1-RC-423o. Janu- ary 18,1956 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before William I. Shooer, 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 these cases the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Employer and the Intervenor contend that the petitions should be dismissed because the Petitioner is not a bona fide labor organization, but is merely "fronting" for the United Steelworkers of America, AFL-CIO, with which the Intervenor's parent organization has a "no-raiding" agreement. We find no merit in this contention, as (1) the record shows that the Petitioner exists for the purpose of dealing with employers concerning terms and conditions of employ- ment, and (2) the fact, if it be a fact, that the Petitioner is assisting I As the AFL and CIO m erged since the hearing in this case, we are taking notice thereof and amending the names of the Intervenor and IAM. 8 Amalgamated Jewelry Workers Union, Local 18, International Jewelry Workers Union, AFL-CIO, herein called the Intervenor , was permitted to intervene at the hearing on the basis of a current contractual interest International Association of Machinists, AFL- CIO, intervened on the basis of a showing of interest we find no merit in the Petitioner's contention that the last named organization should not have been permitted to intervene because its showing of interest was insufficient . That question is a matter for administra- tive determination, not litigable by the parties However, we are satisfied as to the ade- quacy of IAM' s showing. 115 NLRB No. 21.