Alton Myers Brothers, Inc.

ALTON MYERS BROTHERS , INC. 875 Alton Myers Brothers, Inc., Petitioner and Local 344, Retail Clerks International Association , AFL-CIO. Case No. 14-R111- 174. April 04, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to the Union's timely objections to conduct affecting the results of the election held herein, the Regional Director issued and duly served upon the parties his report on objections, a copy of which is attached hereto, in which he found that the Union's objections did not raise substantial and material issues affecting the results of the election, and recommended that they be overruled, and that the re- sults of the election be certified. The Union filed timely exceptions to the Regional Director's report. The Board 1 has considered the Union's objections, the Regional Director's report, and the Union's exceptions thereto, and hereby adopts the findings and recommendations of the Regional Director and overrules the objections z Accordingly, as the tally of. ballots shows that the Petitioner. has not received a majority of the valid votes cast in the election, we shall certify the results of the election. [The Board certified that a majority of the valid votes was not cast for Local 344, Retail Clerks International Association, AFL-CIO, and that said labor organization is not the exclusive representative of the employees in the unit found appropriate.] 1 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Leedom and Members Rodgers and Fanning]. 3 The Regional Director did not directly answer one of the Union's objections that the holding of the election in the face of pending unfair labor practice charges was contrary to the procedures and practices of the Board . This objection, which the Union also advances in its exceptions to the Regional Director' s report , was previously considered and rejected by the Board in its Order issued on December 19, 1958, denying the Union's Motion for Reconsideration of the Decision and Direction of Election herein. As the Union . presented no matter not already considered by the Board , we hereby overrule it. Burrus Mills ; Incorporated, 116 NLRB 1257. REPORT ON OBJECTIONS TO ELECTION Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board on December 2, 1958, an election was conducted by an agent of the Regional Director on December 12, 1958, among certain employees of the Em- ployer in the unit found appropriate in said Decision and Direction of Election. Because the investigation of an unfair labor practice charge filed by the Union 1 shortly before the election had not been completed, the ballots were impounded pending disposition of the charge. On December 24, 1958, the parties were advised that since the investigation had revealed no conduct by the Employer subsequent to the Board's issuance of its Decision and Direction of Election which would have 1 Case 14-CA-2001, filed December 8, 1958 (unpublished ), alleging 8(a) (1) conduct by the Employer. 123 NLRB No. 117. 876 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD interfered with the election that the ballots would be opened and counted on December 30, 1958. No representative for the Union appeared on that date. The tally of ballots disclosed the results as follows: Approximate number of eligible voters ---------------------------- .19 Void-- ballots ----------------------------------------------------- 0 Votes cast for Local 334, Retail Clerks International Association, AFL-CIO -------------------------------------------------- 2 Votes cast against participating labor organization -------------------- 17 Valid votes counted --.-------------------------------------------- 19 Challenged ballots----------------- ------------------------------ 0 Valid votes plus challenged ballots--------------------------------- 19 A majority of the valid votes counted plus challenged ballots has not been cast for Local 344, Retail Clerks International Association , AFL-CIO Since no representative of the Union was present at the count , service of the tally of ballots was made by certified mail. On January 8, 1959, the Union filed timely objections to conduct of the election and objections to conduct affecting the results of. the election.. On'January 12, 1958, 't1ie°Empl6yer filed a Motion to Dismiss Objections to Con- duct of Election and Objections to Conduct Affecting the Results of the Election- This Motion is referred by the Regional Director to the Board for ruling. Objection No. I In this objection the Union, in effect, alleges; A. That the unfair labor practice charges in Case 14-CA-2001 have merit- B. That these violations of the Act create an atmosphere incompatible with the holding of a free election. C. That the Union was arbitrarily placed on the ballot against 'its wishes. D. That to proceed to an election in the face of the pending charges was. contrary to the procedures and practices of the Board. The Regional Director has investigated these objections and reports as follows: The charge in Case 14-CA-2001, filed by the Union on December 8, 1958, alleges. that the Employer spied upon and kept under surveillance the union meeting of August 4, 1958. Inasmuch as the election had already been scheduled for December 12, the parties were notified that the election would be conducted as. scheduled, but because the charges had not been fully investigated at the time, the ballots would be impounded pending completion of the investigation. On December 24, as noted above, the Acting Regional Director advised the• parties that the investigation had revealed no conduct by the Employer subsequent to the Board's Direction of Election which would or could have interfered with the election .2 Case 14-CA-2001 was dismissed the same day for lack of merit. On January 12, 1959, the Union filed with the General Counsel an appeal of the dismissal . This appeal has not yet been acted upon by the General Counsel. As to the Union's objections A, B, and D, the Regional Office concluded that the charges lacked merit and therefore dismissed them. The Regional Director is not required to hold an election in abeyance pending action by the General Counsel on the appeal of dismissal of concurrent unfair labor practice charges. (Sylvania Electric Products, Inc., 119 NLRB 824, 826.) As to objection C, the Union is attempting to again advance the argument which' was rejected by the Board not only in its Decision and Direction of Election, but again in its Order denying the Union's motion for reconsideration which was filed subsequent to issuance of the Decision and Direction of Election. The Regional Director concludes that objection No. 1 is without merit. Objection No. 2 The Union contends in this objection that the Board Decision and Direction of Election in this case is in error, and argues that the Board erroneously found in its Decision that the Union had originally made a demand for recognition and had not effectively withdrawn this claim. This conclusion was based on the fact that the only conduct of the Employer coin plained of by the Union occurred months before the issuance of the Decision and Direction of Election . Regardless of whether the charges had merit , these events cannot be con- sidered as objections . The Great Atlantic and Pacific Tea Coanpany , 101 NLRE 1118 Craft Manufacturing Co., 122 NLRB 341. J. MILLER PRINTING COMPANY 877 This contention was advanced by the Union at the hearing; notwithstanding which the Board found that the Union's conduct had constituted a claim for recognition, which claim had not been effectively withdrawn. The same argument was put forth by the Union in its motion for reconsideration, dismissal, and stay of election which -it- submitted on December 10, 1958, after issuance of the Board's Decision. The contention was again rejected by the Board in its Order Denying Motion, which issued on December 19, 1958. This objection is another effort by the Union to advance the same argument. Al- though invited to do so, it has submitted no new evidence in support thereof. It is well established that matters considered and rejected by the Board cannot be used as the basis for objections. (Burris Mill, Inc., 116 NLRB 1257.) The Regional Director therefore concludes that there is no merit to objection No. 2. RECOMMENDATIONS In accordance with the foregoing conclusions, the Regional Director recommends that the objections be overruled: - As provided in Section 102.69 of the Board's Rules and Regulations, Series 7, as amended, any party desiring to take exceptions to my report and recommendations may within 10 days from the date of issuance of my report file with the Board in Washington, D.C., 7 copies of such exceptions. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with me as Regional Director for the Fourteenth Region, National Labor Relations Board, Metropolitan Building, 508 North Grand Boulevard, St. Louis, Missouri. J. Miller Printing Company ; Gem Offset Plate Company and Local No. 1, Amalgamated Lithographers of America, Peti- tioner. Case No. 2-RC-9648. April 24, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued by the Board on February 3, 1959,' an election by secret ballot was con- ducted on February 13, 1959, by the Regional Director among the employees in the appropriate unit. Upon the conclusion of the elec- tion, the parties were furnished with a tally of ballots which showed that, of approximately 10 eligible voters, 4 were for the Petitioner, 4 against the Petitioner, and 2 ballots were challenged. After an investigation, the Regional Director on March 10, 1959, issued a report on challenged ballots in which he recommended that the challenges to the ballots of Harvey Shill and Stanley Jacob be sustained, and that the Board issue a certification of the results of the election. Thereafter the Petitioner filed timely exceptions to the Regional Director's findings as to the challenged ballots. The Board 2 has considered the Regional Director's report on chal- lenged ballots, and the Petitioner's exceptions thereto, and hereby adopts the findings and recommendations of the Regional Director.' 1 122 NLRB 1256. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. ' In its exceptions the Petitioner took issue with certain factual findings of the Regional Director relating to the exact date that Shill and Jacobs, whose challenged ballots are in 123 NLRB No. 112.