Gulf States Asphalt Co.

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dividual Colonial Stores. Although Solar has no authority to hire or discharge, he does assign routes to the other salesmen, instructs them in sales promotion, and distributes advertising display materials to. them and instructs them in its use. The Atlanta sales manager for the Employer testified that he has delegated to Solar the matter of carry- ing out sales promotions. On this record it appears that Solar respon- sibly directs the work of the other three salesmen within the mean- ing of Section 2 (11) of the Act. Accordingly, he is excluded from the unit as a supervisor. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All salesmen of the Employer at its Atlanta, Georgia, plant, exclud- ing all other employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Gulf States Asphalt Company and Oil, Chemical & Atomic Work- ers International Union, AFL-CIO,' Petitioner. Case No. 39-- RC-958. January 18,1956 DECISION AND CERTIFICATION OF REPRESENTATIVES . Pursuant to a stipulation for certification upon consent election entered into between the Employer, the Petitioner, and the Regional Director for the Sixteenth Region on September 14, 1955, an election by secret ballot was conducted on October 21, 1955, under the super- vision of the Regional Director among the employees in the ap- propriate unit at the Employer's plant in South Houston, Texas. Upon a completion of the election, the parties were furnished with a tally of ballots which showed that of approximately 59 eligible voters, 59 cast ballots, of which 28 were for, and 27 were against, the Peti- tioner. There were four challenged ballots, a number sufficient to af- fect the results of the election. On October 30,1955, the Employer filed timely objections to conduct of election in which it alleged that : (1) 2 of the 4 challenged ballots herein were cast by Tommy Mendoza and Herman Regas who were not employees of the Employer and therefore were not eligible to vote; and (2) the Board agent who conducted the election committed prejudicial error by challenging the ballots of Neil Balsam and Floyd F. Bramble,- Jr., on the ground that they were ineligible to vote, after having pre- The AFL and CIO having merged subsequent to the hearing in this proceeding; we- are amending the identification of the affiliation of the Petitioner. 115 NLRB No. 23. GULF STATES ASPHALT COMPANY 101 vented these 2 allegedly eligible voters from casting timely ballots by prematurely closing the polls. Pursuant to the Board Rules and Regulations, the Regional Director investigated -the objections and, on November 21, J955, issued and duly served upon the parties his report on objections to election and report on challenged ballots. In this consolidated report, the Regional Director recommended that the chal- lenges to the ballots of Mendoza and Regas be sustained because they were ineligible to vote. He further recommended that the challenges to the ballots of Balsam and Bramble, Jr., be sustained, that the Em- ployer's objections to the challenges of these ballots be overruled, and that the Board issue a certification of representatives to the Petitioner. Thereafter, the Employer filed timely exceptions to the Regional Di- rector's recommendations that the ballots of Balsam and Bramble, Jr., remain unopened and uncounted. As neither the Employer nor the Petitioner has excepted to the Regional Director's recommendations that the challenges to the ballots of Mendoza and Regas be sustained, the recommendations as to these voters are hereby adopted. Upon the basis of the entire record in this case, the Board makes the following : FINDINGS OF FACT 1. The Employer is engaged in commerce within the meaning 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 employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In agreement with the parties, the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All produc- tion and maintenance employees at the Employer's plant in South Houston, Texas, including the truckdrivers, but excluding office cleri- cal employees, salesmen, professional employees, guards and all super- visors as defined in the Act. The Employer's Objections In its objections, the Employer alleged that the parties stipulated that the election should be conducted between 3: 30 p. m. and 4: 30 p. m. on October 21, 1955, with the exception that truckdrivers on out-of- town assignments on that day would be permitted to ballot between 3:45 p. m. and 4 p. m. on October 24, 1955; that the Board agent pre- maturely closed the polls on October 21 at 4: 26 p. m.; that employees Balsam and Bramble, Jr., proceeded to the polls oil October 21 after 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4: 26 p. m., but before 4: 30 p. m., and were prevented from balloting by said agent because they had arrived too late; and that these two employees were subsequently permitted to vote on October 24 but their ballots were challenged by the Board agent on the ground that these employees were ineligible to cast ballots. In its exceptions, the Em- ployer contends that Balsam and Bramble, Jr., were eligible voters, and that the premature closing of the polls was prejudicial to it be- cause the two eligible voters, whose votes affect the outcome of the elec- tion, were deprived of an opportunity to cast timely ballots. The Em- ployer therefore argues that the Regional Director erred in sustaining the challenges to these ballots, and urges that these ballots be opened and counted, or that the election be set aside and a new election held, or that the proceeding be remanded to the Region for a hearing, ap- parently on the issue as to when the polls closed on October 21.2 The Regional Director's investigation disclosed that the Employer's president furnished the list of eligible voters at a preelection con- ference held on October 20, 1955, the day prior to the election, and that the names of Balsam and Bramble, Jr., did not appear thereon. The investigation further disclosed that the Employer's president checked the list on that day and expressed his satisfaction that the list was cor- rectly drawn. Moreover, the Employer's office manager, who also at- tended the preelection conference, stated that the eligibility list was correct. The Employer advances no reason as to why the names of Balsam and Bramble, Jr., who it now contends are eligible voters, were omitted from the eligibility list which it furnished. In Stanley Aviation Corporation,3 the Board reiterated its salutary policy "of honoring concessions made [by the parties] in the interest of expeditious handling of representation cases in general" and refused, as contrary to good administrative practice, to reopen a hearing at the postelection stage of that proceeding in order that the parties could litigate an issue concerning eligibility. That policy applies in the in- stant proceeding. At the preelection conference held on the day prior to the October 21 election, the Employer's president not only furnished a list of the employees who were eligible to vote in the forthcoming election, but also, after having been afforded ample time to study the matter, agreed, with the concurrence of his office manager, that the list was properly drawn and was correct. The names of Balsam and Bramble, Jr., do not appear thereon. Under the circumstances, we find that the names of Balsam and Bramble, Jr., were omitted from the eligibility list by agreement of the parties 'and that, for that reason, the Regional Director's recommendations that the challenges to the ballots 2 it is clear from our findings hereinafter and from the fact that all eligible voters appear to have cast ballots that the alleged early closing of the polls did not result in any, prejudice to the Employer. 3 112 NLRB 461. 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, 19559, 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.