Crown Drug Co.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In dismissing the complaint at the hearing the Trial Examiner stated inter alia: Ordinarily a Trial Examiner just says, "Motion reserved." But there comes a time when a Trial Examiner can't do that. I am not going to comment on the evidence at this time, and I am not going to comment on the law at this time. I will do all of that fully and in detail when I issue the report , because I will issue the report. Crown Drug Company and Retail Clerks International Associa- tion, Local 782, AFL-CIO, Petitioner. Case No. 17-RC-2783. March 24, 1959 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on September 23, 1958, under the direction and supervision of the Regional Director for the Seven- teenth Region among the employees in two agreed-upon voting groups. The results were as follows : In voting group A, with ap- proximately 216 drug store employees as eligible voters, 181 valid votes were cast, of which 65 were in favor of, and 114 were against, the Petitioner, and 2 were challenged. In voting group B, with ap- proximately 10 pharmacists as eligible voters, 2 valid votes were cast for, and 7 against, inclusion in the same bargaining unit with the employees in voting group A; and 1 valid vote was cast for, and 7 against, separate representation by the Petitioner. On September 26, 1958, the Petitioner timely filed objections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director con- ducted an investigation of the objections and, on December 4, 1958, issued and served on the parties his report on objections. In his report, the Regional Director concluded that the objections lacked merit and recommended that they be overruled. On December 8, 1958, the Petitioner filed timely exceptions to the Regional Director's report. 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 [Chairman Leedom and Members Bean and Jenkins]. Upon the basis of the entire record in this case, the Board finds the following : 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. 123 NLRB No. 44. CROWN DRUG COMPANY 337 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. As stipulated by the parties, we find that the employees in the following voting groups may constitute appropriate units for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Voting Group A: All employees employed in the Employer's stores in Greater Kansas City (Jackson, Clay, and Platte Counties, Mis- souri, and Johnson and Wyandotte Counties, Kansas), including pharmacists, fountain employees, regular part-time employees, relief employees, and employees in the Rx Prescription Center, but ex- cluding porters, guards, store managers, assistant store managers, fountain managers , employees of stores outside Greater Kansas City, and supervisors as defined in the Act. Voting group B : All professional employees (pharmacists) em- ployed in the Employer's stores in Greater Kansas City (Jackson, Clay, and Platte Counties, Missouri, and Johnson and Wyandotte Counties, Kansas.) 5. The Petitioner's basic objection to the election is that the "sanc- tity of the balloting was not maintained" for the reason that the ballot box, while unsealed, remained in the sole control of the Em- ployer's representatives and the Board agent conducting the election "for an extended period of time." The Regional Director's investigation reveals that this was a travel- ing election conducted by two groups of election agents among the employees of 20 stores operated by the Employer in Greater Kansas City. The election crew herein involved was composed of a Board agent and an observer for the Petitioner and one for the Employer, and was chauffeured by a representative of the Employer in traveling from one polling place to another. The election arrangements pro- vided that, at the conclusion of the morning session of balloting, the official seal would be placed on the voting bag, and it would be initialed and covered with scotch tape for protective purposes. The Board agent did not seal the official voting bag immediately after the morning's voting, but carried it to the sidewalk outside the store, accompanied by the two election observers. The Employer's repre- sentative serving as chauffeur invited them to lunch. But the Peti- tioner's business representative then appeared and took the Petition- er's observer home to prepare her husband's lunch. Seconds later, the Board agent realized that the Petitioner's observer had left the group and attempted to stop her car. Failing in this, he immedi- ately sealed the ballot box, and both he and the Employer's observer 508889-60-vol. 123-23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed their names across the sealing tape. The group then drove to a restaurant. The sealed ballot box was left in the automobile, which was locked, while they lunched. After lunch, the bag was taken to the offices of the Board, where it remained until the after- noon session of voting. During lunch, the Petitioner's business representative who had earlier driven away with the Petitioner's observer appeared at the restaurant, concerned about the unsealed ballot box they had left behind. The Board agent explained what had been done and took him to the locked automobile containing the ballot box. The Peti- tioner's business representative states that the ballot box was properly sealed, that the sealing tape was signed by the Board agent and the Employer's observer, and that he "frankly and honestly . . . [has] no reason to believe the ballot box was tampered with." The Petitioner's observer during the afternoon balloting confirmed that the ballot box was sealed and signed as already described when the polls were opened for the afternoon voting schedule. While the Petitioner's morning election observer left without signing the cer- tification on conduct of election, she states that, to her knowledge, the election was properly conducted, the Board agent had the ballot box in his possession at all times, and there was no question about its security and protection. As indicated above, the Regional Director has found no justifica- tion for setting aside the election on the basis of the foregoing facts. The Petitioner takes exception to the Regional Director's conclusion, contending that the Board agent "failed to assume his responsibility for assuring that the election conducted should not be opened to question in that the sanctity of the ballot box was not maintained." We agree with the Regional Director's conclusion. While the ballot box was left unsealed in the sole control of the Board agent and the Employer's observer, this was occasioned by the unannounced and sudden departure of the Petitioner's observer. Moreover, the ballot box remained in this condition for only a matter of seconds, rather than for "an extended period of time" as charged in the objections, and we cannot reasonably find that any improper access to the box was possible during this brief interval.' Nor do we find any ir- regularity in the subsequent conduct of the election which raises a doubt concerning the integrity and secrecy of the election. Accord- ingly, as recommended by the Regional Director, we overrule the objections in this connection.' ' Cf. Tidelands Marine Services, Inc., 116 NLRB 1222. 2 The Regional Director also recommended that the other objections of the Petitioner be overruled . No exceptions were filed to these recommendations and they are hereby adopted. The objections involved are therefore overruled. OREGON WASHINGTON TELEPHONE COMPANY 339 As the Petitioner failed to secure a majority of the valid ballots cast in the election held herein, we shall certify the results of the election. [The Board certified that a majority of the valid votes was not cast for Retail Clerks International Association, Local 782, AFL-CIO, in the election held herein, and that said labor organization is not the exclusive representative of any of the employees involved.] Oregon Washington Telephone Company and Local 125, Inter- national Brotherhood of Electrical Workers, AFL-CIO, Peti- tioner. Case No. 36-RC-1343. March 04, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election, issued September 4, 1958, an election was conducted by mailed ballots, under the di- rection and supervision of the Regional Director for the Nineteenth Region among the employees in the unit found appropriate in the above-mentioned decision. On September 26, 1958, a tally of ballots was furnished the parties. The tally showed that of 82 votes cast in the election, 38 were for, and 40 were against, the Petitioner, with 4 ballots challenged. On October 3, 1958, the Petitioner filed timely objections to con- duct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation and, on October 30, 1958, issued and duly served upon the parties a report on challenged ballots and objections to election, in which he recommended that three challenges be sustained and the fourth overruled, and that the election be set aside and a new election ordered. Thereafter, the Employer filed timely exceptions! to the Regional Director's report. The Board has considered the objections, the Regional Director's report and the Employer's exceptions thereto, and upon the entire. record this case finds : The Regional Director's recommendations with respect to the chal- lenged ballots were not excepted to and are hereby adopted. The ballot, concerning which we overrule the challenge, cannot affect the results of the election. Accordingly we shall not order its opening.. The Petitioner objected to the election upon the ground, inter cvii ' 1 Unpublished. 2 The Petitioner filed other objections to the election . However, the Regional Director found that these objections were without merit and recommended that they be overruled. As no exceptions have been filed to the Regional Director's recommendations as to these, objections, they are hereby adopted without comment. 123 NLRB No. 47.