Sweet-Orr and Co., Inc.

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action, against, or, promotion for, a crewman would be followed by, the foreman. We And, on the basis of the preponderance of the, credible. testimony, that the train bosses are supervisors and hence, are excluded from the unit for which the . Firemen has been certified as bargaining representative.' MEMBER JENKINS took no part in the 'consideration of the above Second Supplemental Decision. ' United States Gypsum Company, 114 NLRB 1285, 1290 (conductor) ; TVeetern • Equip- ment Company, 96 NLRB 1376 , 1378 (conductor ) ; Northern Redwood Lumber, Company, 88 NLRB 272 , 279 (conductor). Sweet-Orr and Co., Inc. and Confectionery and Tobacco .Drivers & Warehousemen's Union, Local .805, International Brother- hood of Teamsters,'AFL-CIO, Petitioner. Case No. 9-RC-8541. July 17,1957 SUPPLEMENTAL DECISION AND DIRECTION Pursuant . to. a Decision and Direction of Election 1 issued in this proceeding on March 26, 1957, an election was conducted by mail ballot returnable to the Board's Regional Office no later than the close of business on April 18, 1957, under the direction and super- vision of the.. Regional Director for the Second Region among the employees in the unit found appropriate by the Board. Following the election, a tally of ballots was furnished the parties. The tally shows that 22 ballots were cast in the election of which 11 ballots were cast for the Petitioner, 9 against the Petitioner, and 2 were challenged. As the,challenged ballots were sufficient in number to affect the results of the election, the Regional Director investigated the eligibility of those.individuals whose ballots were challenged, Thereafter, on May 29, 1957, the Regional Director issued a report on challenged ballots in which he recommended that, the challenges be overruled and that the, ballots be opened and counted. On June 7, .2957, the Petitioner filed exceptions to the . report on challenges, Pursuant to the provisions of Section 3; (b) of the National Labor Relations Act,. the Board has delegated its powers. in connection with this case to <a, three-member panel [Members Murdock, Rodgers,. and Bean].,, ;The Board, has considered. the; Regional. Director's report, q4 ehal; legged ballots and the Petitioner's exceptions and adopts the Regional Diector's recomnc}endatinns.. The. Petitioner cantends, that,,l.aul Brojde and Robert ;D. ;P;uT4ee: are.not eligible;ta vote inasmuch As 1.I17 . Nl.R, :7.98.. .. . . . ., 118 NLRB No. 88. -,:: HARVEY LUMBER & SUPPLY CO. 737 their names did not appear on the eligibility list and that they are not bona fide employees but were added to the Employer's payroll to affect the results of the election. The Regional Director's investiga- tion shows that Paul Brojde and Robert D. Furbee were hired by the Employer as sales representatives in designated territories on January 21 and January 2, 1957, respectively, and have remained on the Employer's payroll thereafter. Their names did not appear on an eligibility list submitted in November 1956 before their hire, but their names did appear on eligibility lists submitted after the Decision and Direction of Election. Furbee, with permission from the Em- ployer, did not sell for the 3 weeks in March ending on the 9th, 16th, and 23d, and was not paid for this period. However, he continued to receive sample merchandise, instructions for sales planning, and received pay for the week ending March 30, 1957, and for all weeks thereafter. Brojde and Furbee appear to have the same duties and conditions of employment as other sales representatives in the unit. The investigation revealed no indication that Brojde and Furbee are not bona fide employees. We shall overrule the challenges to the ballots of Brojde and Furbee. In view of Petitioner's failure to ad- vance any affirmative evidence to indicate that the Regional Director's findings are contrary to fact, we shall deny its request for a hearing in this matter.2 As we have overruled the challenges to the 2 ballots and as the outcome of the election depends on the consideration of these ballots, we adopt the Regional Director's recommendation that-these 2 ballots be opened and counted. [The Board directed that the Regional Director for the Second Region shall open and count the ballots of Paul Brojde and Robert D. Furbee, and serve upon the parties a supplemental tally of ballots.] 2 See American Cable and Radio Corporation, 107 NLRB 1090, 1092. Harvey Lumber & Supply Co.' and General Truck Drivers, Chauf- feurs, Warehousemen and Helpers, Local #270, AFL-CIO, Pe- titioner. Case No. 15-RC-1546. July 17,1957 DECISION AND DIRECTION OF ELECTION Upon a' petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William W. Fox, hearing. off•'icer... The hearing officer's rulings .. made. at the.hearing are free from prejudicial error and are hereby affirmed. The name of the Employer appears as corrected at the hearing. 118 NLRB No. 85. 450553-58-vol. 118-48