Marie Antonnette Hotel

MARIE ANTOINETTE HOTEL 207 status other than that of temporary seasonal employees, we shall exclude them from the unit 8 We find that 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 employees of the Employer at its Jackson Heights, Flushing, Elmhurst, and New York, New York, bakery shops, including the truckdriver, and the office clerical, but excluding the seasonal em- ployees, foremen and foreladies, and all other supervisors as defined in the Act 9 ` [Text of Direction of Election omitted from publication ] e Great Btlantso and Pacwfo Tea Company, National Bakery Division, 116 NLRB 1463, 1467 9 The Petitioner has not indicated whether it desires to participate in an election in the broader unit herein found appropriate The Petitioner's name has been placed on the ballot, but if it so desires it may withdraw upon appropriate notification to the Regional Director i Prestige Hotels, Inc., d/b/a Marie Antoinette Hotel and Hotel and Restaurant Employees and Bartenders Union , Local 339, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, Petitioner. Case No 12-RC-649 November 18, 1959 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election dated August 10, 1959,1 an election by secret ballot was conducted on August 28, 1959, under the direction and supervision of the Regional Director for the Twelfth Region, among the employees in the appropriate unit After the election, the parties were furnished with a tally of ballots, which showed that, of approxmiately 19 eligible voters, 8 cast valid ballots for, and 8 against, the Petitioner, and 1 ballot was challenged The challenge'was thus determinative of the election results No obi ections were filed to the election or to conduct affecting the results The Regional Director conducted an investigation and thereafter, on September 10, 1959, issued his report on challenged ballot, in which he overruled the challenge and recommended that it be opened and counted The Employer filed timely exceptions to the report The Board has considered the Regional Director's report on chal- lenged ballot, the Employer's exceptions, and upon the entire recoi d in the case, hereby adopts the Regional Director's findings and recoin- mendations as to the challenged ballot, for the following reasons I- Unpublished 125 NLRB No 22 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer did not except to the Regional Director's finding that Kaires, whose ballot was challenged, was a regular part-time employee within the unit. It excepted on the grounds (1) that the challenged ballot is invalid in that, because of the tie vote, it lacks secrecy, and (2) that the voter whose ballot was challenged was not on the eligi- bility list agreed to by the parties. It also moved to void the election for lack of jurisdiction. The exceptions are without merit. As to (1), we have held that the fact that a voter's identity may be publicly known as an unavoidable result of the challenge procedure, does not invalidate his vote in the determination of the election results.' As to (2), it is not alleged that the parties entered into a written and signed agreement which ex- pressly provided that issues of eligibility resolved therein shall be final and binding upon the parties. Absent such an agreement, the mere fact that Kaires' name was not on the list of eligible voters agreed upon by the parties does not foreclose a determination of his eligibility at this time.' As to the motion to void the election, at the hearing held in this proceeding on July 8, 1959, the Employer indicated that from December 24, 1958, to May 30, 1959, the gross volume of business for its seasonal hotel operations was approximately $205,000, and it esti- mated that the figure .for the first year of operations would be about $575,000. Upon the basis of such facts, including the estimate, which was considered reasonable, and the further record evidence of substan- tial inflow of goods from out of State, the Board in its Decision and Direction of Election concluded that it would effectuate the policies of the Act to assert jurisdiction over the Employer' In its motion the Employer does not contend that the Board improperly asserted juris- diction on the basis of the record before it but asserts only that the Board is without jurisdiction because the Employer's experience up to August 31, 1959, indicates that gross volume of business for the first year of operations may fall short of $500,000. We disagree. The Employer's operations are clearly within the Board's statutory juris- diction. In determining whether or not it should, under its standards, assert jurisdiction in a representation proceeding, the Board considers only the evidence made part of the record prior to the election. To hold otherwise, especially in cases like the instant one, would introduce an element of uncertainty as to whether the Board will assert its juris- diction up to the date of certification of the election results and would impair the conclusiveness which the Board seeks to impart to its elec- tion procedures. In the instant case, where assertion of jurisdiction 2 See Davison Chemical Company, Division of W. R. Grace ct Co., 115 NLRB 786; The De Vilbiss Company, 115 NLRB 1164, 1169. 8 See Norris-Thermador Corporation, 119 NLRB 1301. 4 See Floridan Hotel of Tampa, Inc., 124 NLRB 261. INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO 209 was predicated in part upon the Employer's experience for a portion of its first year of operations and in part upon its reasonable estimate of $575,000 gross volume for its first full year, the Employer did not move for reconsideration with respect to such issue prior to the elec- tion. Its request for reconsideration subsequent to the election is therefore untimely. Accordingly, the Employer's motion to void the election for lack of jurisdiction is hereby denied. Inasmuch as we have overruled the challenge to Kaires' ballot, we shall direct that it be opened and counted. [The Board directed that the Regional Director for the Twelfth Region shall, within 10 days from the date of this Direction, open and count the ballot of John Kaires and serve upon the parties a revised tally of ballots.] CHAIRMAN LEEDOM took no part in the consideration of the above Supplemental Decision and Direction. International Woodworkers of America, AFL-CIO and T. Smith & Son, Inc.; Montmorency Paper Company, Inc.; Candwood Shipping Company, Ltd. Cases Nos. 15-CC-90, 15-CC-92, and 15-CC-93. November 20, 1959 DECISION AND ORDER On July 29,1959, Trial Examiner Ramey Donovan issued his Inter- mediate Report in this proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondent and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report 1 and the- ex- 1 We correct the inadvertent reference by the Trial Examiner to E. Al. Little, chairman of the board of directors of Anglo Newfoundland Development Company, Limited, herein called Anglo Newfoundland, and Anglo-Canadian Pulp and Paper Mills, Limited, as E. M. Moore. 125 NLRB No. 33.