Jay Transportation Corp., et al.

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD courage membership in the Union thereby engaging in unfair labor practices pro- scribed by Section 8 (a)(3) and (1) of the Act. 5. The aforesaid unfair labor practies having occurred in connection with the operation of Respondent's business as set forth in section 1, above , have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Jat Transportation Corp., et al. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers, Taxi Drivers and Terminal Employees, Local Union 826, Petitioner. Cases Nos. 2-110-9948-50, 2-RC-9953-57, 2-110-9960, 2-110- 9964-66, 2-RC-9968-77, 2-RC-9979-89, 2-RC-9991-93, 2-RC- 9995-98, 210-10000-03, $ RC 10005, 2-RC-10007-08, 210- 10013, 2-110-10015-19, 2-RC-10021-25, 2-RC-10027-28, and 2-RC-10290. April 18, 1961 SUPPLEMENTAL DECISION, CERTIFICATIONS, AND DIRECTION Pursuant to a Decision , Order, and Direction of Elections issued by the Board on August 23, 1960,1 elections by secret ballot were con- ducted on September 13 through September 16, 1960, under the direc- tion and the supervision of the Regional Director for the Second Region among the employees in the appropriate units. Upon the con- clusion of the elections the parties were furnished with tallies of ballots which showed that of the 59 directed elections, listed in Appendix A, attached to the Regional Director's report, in 57 of the elections the Unions involved did not receive a majority of the valid ballots cast, and that in 2 elections a participating union received a majority of the valid ballots cast. In the remaining five elections as indicated on pages 4, 6, 7, 8, and 11 of the Regional Director's report, the results were not conclusive, as the challenged ballots were determinative of the election. The Petitioner filed timely objections to conduct affect- ing the results and the conduct of the elections.' In accordance with the Board's Rules and Regulations, the Re- gional Director conducted an investigation of both the challenges and 1128 NLRB 780. 2In a stipulation approved by the Board on January 3, 1961 , the Petitioner withdrew its objections in the Dee Bee Garage Corp., et al., Case No. 2-RC-9954, one of the above- mentioned five elections in which the challenged ballots were determinative , and the parties agreed that certain challenged ballots be opened and counted and that a revised tally of ballots be issued The revised tally of ballots showed that the Petitioner received a majority of the valid ballots cast , and it was certified by the Regional Director as the representative of the employees in the appropriate unit. In the absence of exceptions thereto, the Board adopts the certification as issued by the Regional Director , and hereby severs this case from the instant proceeding 131 NLRB No. 39. JAT TRANSPORTATION CORP., ET AL. 123 the objections, and thereafter issued and duly served upon the parties reports on challenged ballots and objections, in which he recom- mended that all the objections be overruled, except as to certain objec- tions involving Super Operating Corp., et al., Case No. 2-RC-9988, which he recommended be consolidated for hearing with a scheduled unfair labor practice hearing involving related conduct. The Re- gional Director also recommended that the Petitioner be certified as the exclusive collective-bargaining representative of the employees at at Trans Maintenance, Inc., et al., Case No. 2-RC-10003, and that the Metropolitan Taxi Workers Union be certified as the exclusive collective-bargaining representative of the employees in the appro- priate unit at the 57th Street Management Corp., et al., Case No. 2-RC-10290. He further recommended that certification of results be issued as to employees in the remaining units in which the votes cast were determinative, excepting Super Operating Corp. He also made specific recommendations and fi_idings as to the disposition of the challenged ballots in the remaining elections. The Petitioner filed timely exceptions to the Regional Director's report on objections. 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, Leedom, and Fanning]. The Board has considered the Petitioner's objections, the Regional Director's report, and the exceptions thereto, and hereby adopts the findings and recommendations of the Regional Director with the fol- lowing additions and modifications : As to the Petitioner's objections relating to the conduct affecting the results of the election, in the absence of specific exceptions thereto, we shall adopt the Regional Director's recommendations that objec- tions A-1, 3, 5, 6,3 7, 8, 9, and 10 be overruled, and we hereby over- rule them. As to objection A-2, we agree with the Regional Director that the nature of the propaganda complained of does not warrant departing from the Board's general rule of not policing the repre- sentations therein involved and, in our opinion, the employees them- selves were able to determine the truth or falsity of the propaganda .4 As to objection A-4, relating to the payment of $2 by certain Em- ployers as "lunch" money to employees who attended preelection meetings, in the absence of some showing that such meetings were held within the 24-hour period immediately preceding the elections involved, or that such payment were conditioned upon how the em- 8 By Order issued on December 15, 1960, such objections involving Super Operating Corp , Case No 2-RC-9988, were consolidated for hearing with Case No. 2-CA-7559, wherein unfair labor practices involving similar conduct were involved. 4 See, e.g., Pinkerton's National Detective Agency, Inc., 124 NLRB 1076, 1077; The Lundy Packing Company, 124 NLRB 905, 907-908; The Cross Company, 123 NLRB 1503, 1506, The Baltimore Luggage Company, 123 NLRB 1289, 1290 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees voted, we find, in agreement with the Regional Director, that the conduct complained of does not warrant setting aside the election.' In its exceptions going to the preparation and the conduct of the election, the Petitioner generally alleges that the Regional Director acted arbitrarily and capriciously. It appears from the Regional Director's report that he prepared for the instant elections in accord- ance with standard Regional Office procedures. He obtained from the Employers lists containing the names of putative eligible voters and advised the Petitioner that such lists were available for checking at the Regional Office on September 1, 1960. In its exceptions, the Peti- tioner alleges that because of the large number of employees involved it could not check their individual status in the approximately 13 days allotted. Moreover, as the Petitioner admittedly made no effort to attempt such a check, or requested the Regional Director for addi- tional time, or suggested any other reasonable method for checking the lists, we find no merit in its contentions relating thereto.' Because of the large number of employees involved and the nature of the Employers' operations, the Regional Director was confronted with the need for a practical procedure of eliminating from the eligibility lists the names of casual employees excluded under the Board's eligibility definition set out in the original Decision herein. Under the circumstances, we believe that the Regional Director properly exercised his discretion by preparing and serving upon the parties a list of employees who, by reference to the payroll records, appeared to be ineligible as casual employees. Although the Pe- titioner did not then take exception to this list, or the names of any individuals contained therein, or suggest any affirmative method for analyzing the payrolls, it now asserts in its exceptions that the Re- gional Director failed to examine the Employer's payrolls in any consistent manner, or apply a uniform standard of regularity of employment in separating the casual employees from regular and regular part-time employees. In support of this contention, the Pe- titioner refers to the 5 elections in which challenges were determin- ative, noting that approximately 3 percent of "regular full-time drivers" were inadvertently omitted from the eligibility list, and that the Regional Director's resolutions of the challenged ballots of 17 named individuals appear to be inconsistent and lacking formal stand- ards. We find no merit in the Petitioner's contentions' 6 See The National Sugar Refining Company of New Jersey , 4 NLRB 276, 279; Albion Malleable Iron Company, 104 NLRB 225, 227; Federal Silk Mills, 107 NLRB 876, 877-878; Bordo Products Company, 119 NLRB 79, 84. 6 Cf. Interboro Chevrolet Co , Inc., 113 NLRB 118 , 119-120 7 The Petitioner does not refer to any specific rulings on challenges it would have the Board reverse , but appears to be citing the rulings on the individuals in question merely as illustrative of its general contention that the Regional Director in preparing the eligibility lists for the elections and in ruling on the challenges in the five elections failed to apply consistent standards . In these circumstances, we find the exceptions are JAT TRANSPORTATION CORP., ET AL. 125 In our opinion, the inadvertent omission of a small percent of regu- lar employees from the eligibility lists in the 5 elections in question is insufficient to raise material issues as to the proper conduct of these elections, or the other 59 elections as to which there is no evidence. Nor does it necessarily indicate any impropriety by either the Em- ployer or the Board agents. Eligible lists are merely a tool utilized by the Board to facilitate an orderly election and do not purport to be a final list of all eligibles. Our challenge procedure generally guarantees the right to every individual who asserts an employee status to appear at the polls and cast a ballot, even though his name may not appear on an eligibility list. No claim is made here that any employee who presented himself at the polls was denied an oppor- tunity to vote. Thus, in the instant five elections, a number of em- ployees who were not on the list of eligibles appeared at the polls and voted. Other employees whose navies may have been omitted from lists in other elections could have done likewise.' As for the resolution of the 17 challenged ballots, we have examined the basis for the Regional Director's findings and recommendations in detail and find that, except in the cases of John Culbertson (Real Cab Co.) John L. Worthen, Louise llerdon, and Frank Meanin;er (all of Clinton Taxi Co.), his findings are adequately supported. Although we believe that it is possible to differ with his findings and recommendations in regard to the four individuals named above, we are unable to conclude that such deviations, if any, indicate a ca- pricious application of the Board's criteria, and are sufficient to war- rant overturning the elections.9 The Regional Director permitted the Petitioner the opportunity to have observers at all elections. The Petitioner was apparently able to obtain employees to volunteer as observers at only a minority of the elections, and requested the opportunity to use outside observers at the remaining elections. In the absence of agreement by the Em- ployers, the Regional Director refused to permit such observers, and in its exceptions the Petitioner contends the Regional Director there- insufficient to raise any material issues with respect to the Regional Director 's individual rulings and we, accordingly , adopt his recommendations with regard thereto . However, as discussed below, we have considered the rulings on the challenges in question as part of the Petitioner's general contention that they establish arbitrary action on the Regional Director's part. 8 To the extent that the Petitioner is arguing that there may have been errors and discrepancies in the eligibility lists used in elections as to which there is no evidence, we find such contentions in the nature of postelection challenges which the Board will not consider. D Moreover, it is clear that the Petitioner was in no way prejudiced by the Regional Director's rulings on the four individuals . For, in the case of the Clinton Taxi Company, involving three of the four individuals in question , it appears from the tally of ballots based upon the Regional Director's findings and recommendation , that the Petitioner has obtained a majority of the valid votes cast , and following this recommendation, we are certifying the Petitioner . As for the fourth individual involved , his vote could not in any case have affected the results of the election in which he was involved. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by abused his discretion. It is well-settled that the use of observers at a Board-ordered election is a privilege and not a right, and that the presence of observers other than Board agents is not required by the Act.10 Nevertheless, it is standard procedure to permit the parties to use employees, and unusual to permit outside observers. We find that the Regional Director's adherence to our normal procedure did not constitute an abuse of the broad discretion granted him by the Board in the holding of elections. As a method of identifying employees, the Board agents made use of "hack licenses" and social-security cards. In its exceptions the Petitioner contends that such methods of identification were in- adequate, but has presented no evidence to indicate that the methods used were subject to abuse or improperly handled by the Board agents. Under all the circumstances, we find that the methods of identification here used were reasonable, and find no merit to the Petitioner's general assertions. Finally, as to the Petitioner's allegations that the free choice of the employees was interfered with because the election sites were selected by the Regional Director and were on the Employer's premises, it is established Board policy to permit the Regional Director wide dis- cretion in making arrangements with respect to conduct of elections. In the absence of some specific showing that prejudice resulted, we shall adopt the findings of the Regional Director that the sites selected were suitable, and overrule the Petitioner's objections. In view of the foregoing, and upon consideration of all the excep- tions, including those not specifically discussed, we find, except as to certain objections involving Super Operating Corp., noted above, that they raise no material and substantial issues warranting the reversal of the Regional Director's findings and recommendations, and we deny the Petitioner's request for a hearing. Also, in the absence of specific exceptions thereto, we shall adopt the Regional Director's recommendations as to the challenged ballots. Accordingly, we shall provide for appropriate certifications in those elections in which the vote was conclusive, and shall, as provided below, direct that the chal- lenged ballots in the remaining elections listed below be opened and counted, and revised tallies of ballots issued. [The Board directed that the Regional Director for the Second Region shall, within 10 days from the date of the instant Supple- mental Decision, open and count the ballots of the employees of the Employers listed on pages 5, 7, and 11, of the Regional Director's report, and proceed further in accordance with the Board's Rules and Regulations.] 10 See Augusta Cartage Company, 120 NLRB 73, 74. GUILD INDUSTRIES MANUFACTURING CORP. 127 [The Board certified that the majority of the valid ballots was not cast for the Unions in the appropriate units of the Employers listed in Appendix A attached to the Regional Director's report ( except at Trans Maintenance Inc., et al., 57th Street Management Corp., et al., and Super Operating Corp., et al.) and that said labor organizations are not the exclusive representatives of the Employers in the appro- priate units.] [The Board certified the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Taxi Drivers and Terminal Employees, Local Union 826, as the designated collective-bargaining representative of the employees in the units found appropriate at the Trans Maintenance, Inc., et al., (2-RC-10003) and at Clinton Taxi Corp., et al., (2-RC-9956) and also certified Metropolitan Taxi Work- ers Union as the designated collective-bargaining representative of the employees in the unit found appropriate at the 57th Street Man- agement Corp., et al. (2-RC-10290.).] MEMBER FANNING, dissenting in part : The Petitioner contends that the Regional Director did not rule consistently on challenged ballots. There was a total of 64 such ballots and the Petitioner's brief cited 17 of them as examples in support of its position. My colleagues concede that 4 of these 17 may have been wrongly decided by the Regional Director but dispose of them on the ground there has been no prejudice in those specific instances. I cannot agree with this procedure. The nature of the Petitioner's position requires an examination of the rulings on all the challenges. That the Petitioner has raised a substantial issue as to the correctness of the rulings amply appears from the finding of the majority itself that almost 25 percent of the rulings examined were dubious. I do not attempt at this time to say whether the Regional Director was right or not. But I think that an issue has been fairly raised which requires that we examine all the rulings on challenges. In all other respects I concur in the Board's decision. Guild Industries Manufacturing Corp.' and Florida State Council of Carpenters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Petitioner. Case No. 12-RC- 1079. April 19, 1961 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 Alan D. Greene, hearing ' The name of the Employer appears as amended at the hearing. 131 NLRB No. 24.