Fisher-New Center Co.

FISHER-NEW CENTER COMPANY 809 Fisher-New Center Company and International Union, United Plant Guard Workers of America (UPGWA) and its Amalgamated Local Union No. 114, United Plant Guard Workers of America, Petitioner. Case 7-RC-9424 August 3, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN, AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election approved on May 9, 1969, an election by secret ballot was conducted on May 22, 1969, under the direction and supervision of the Regional Director for Region 7 among the em- ployees in the stipulated unit. At the conclusion of the election the parties were furnished with a tally of ballots which showed that of approximately 17 eligible voters, 16 cast ballots, of which 8 were for, and 8 against, the Petitioner. Thereafter, the Peti- tioner filed timely objections to conduct affecting the results of the election alleging, in effect, that the ballots of two supervisors had been counted notwithstanding timely challenges thereto. The Regional Director conducted an investiga- tion of the objections and concluded that they raised material and substantial issues of fact which could best be resolved by a hearing. On June 26, 29, and 30 a hearing was held before Hearing Of- ficer Albert G. Fisher. On September 26, 1969, the Hearing Officer is- sued his Report on Objections, attached hereto, in which he recommended that the objections be dismissed in their entirety. Without passing upon the supervisory status of Pelto and Claspell, the Hearing Officer recommended that the objections be dismissed in their entirety because they were in the nature of postelection challenges , which the National Labor Relations Board does not permit. He further found that the Board agent had not acted improperly in informing Petitioner's representative of the signing of the Norris-Ther- madorl eligibility list at the time the representative renewed Petitioner's observer's challenges to the two ballots. Thereafter, the Petitioner filed timely exceptions to the Hearing Officer's report and a supporting brief and the Employer filed a brief in answer to the exceptions and in support of the Hearing Officer's report. The Board, on February 13, 1970, issued its Order Remanding Proceeding to Hearing Officer.2 The Board therein indicated it had duly con- sidered the Hearing Officer's Report on Objections, the Employer's brief in support thereof, and the Petitioner's exceptions thereto and supporting brief and was of the opinion that issues were raised with respect to the supervisory status of R. Pelto and M. Claspell, a matter not resolved by the Hearing Of- ficer although litigated by the parties, which in- dicated that this situation might, in the peculiar cir- cumstances herein, fall within the exception to the Norris-Thermador rule as to the final and binding nature of a signed agreement on eligibility. Ac- cordingly, the proceeding was remanded to the Hearing Officer for a determination of the super- visory status of Pelto and Claspell. The Board, in its Order, directed that the Hearing Officer prepare a supplemental report containing resolutions of the credibility of witnesses, findings of fact, and recom- mendations to the Board as to disposition of the is- sues. On April 3, 1970, the Hearing Officer issued his attached Supplemental Report on Objections in which he found that Pelto and Claspell were super- visors within the meaning of the Act but recom- mended, nevertheless, that the objections be dismissed on the ground that they were postelection challenges and that the Board agent conducting the election had engaged in no impropriety in soliciting withdrawal of the challenges interposed by Peti- tioner's observer at the time of the balloting. Thereafter, Petitioner filed timely exceptions to the Hearing Officer's Supplemental Report on Objec- tions and the Employer filed a brief in partial sup- port of said report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of employees within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for collective bargaining within the meaning of Sec- tion 9(b) of the Act: ' Norris-ThermadorCorporation, 119 NLRB 1301 Y Not printed in NLRB volumes 184 NLRB No. 92 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All watchmen employed by the Fisher New Center Co., at its locations in the present Fisher Building and in the present New Center Building ; excluding all other employees and all supervisors as defined in the Act. 5. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the stipulation of the parties, the objections, the Hear- ing Officer's Report on Objections, the Supplemen- tal Report on Objections, and the entire record in the case, including the exceptions and briefs of the parties, and hereby adopts the findings and recom- mendations of the Hearing Officer only to the ex- tent consistent herewith. We agree with the Hearing Officer's finding that Pelto and Claspell are supervisors within the mean- ing of Section 2(1 1) of the Act. However, we do not agree that the objections to the election should be dismissed nevertheless. It is not disputed that on May 9, 1969, prior to this election, the parties attended a preelection conference at which they both signed a Norris- Thermador eligibility list, resolving issues of eligi- bility. At the election on May 22, 1969, the Peti- tioner's observer challenged two voters, Pelto and Claspell, whose names appeared on the eligibility list, on the ground that they were supervisors. Prior to the ballot count at the conclusion of the election, Petitioner Vice President Waldrop reiterated to the Board agent Petitioner's claim that the challenged ballots were cast by supervisors. The Employer's representative thereupon informed Waldrop that the voting eligibility list was approved by both the Petitioner and the Employer, and the Board agent conducting the election confirmed this information. Waldrop, after examining the eligibility list, stated that he was unaware of the agreement on the eligi- bility list reached at the meeting of May 9, and that, under the circumstances, he would withdraw the challenges. The Board agent conducting the elec- tion then solicited and secured signatures of the parties' representatives on the back of the chal- lenge envelopes, to a stipulation that, "This em- ployee is eligible to vote because he is a non-super- visory employee within the unit described in the Notice. This stipulation is final and binding." The ballots, including those of Pelto and Claspell, were then counted and the tally was taken and certified. The Hearing Officer concluded that the stipula- tion of the parties was conclusive and these were in the nature of postelection challenges. He also stated that the Board agent had engaged in no im- proper conduct by informing the Union's agent of the signing of the Norris-Thermador list. We dis- agree as to the effect of the agreement and there- fore shall set aside the election, even though we do not imply any improper conduct on the part of the Board agent. In Norris-Thermador, the Board established the rule that the parties to an election agreement would be bound by an eligibility list attached and incor- porated into a written and signed agreement if it was specifically stated that all eligibility issues resolved would be final, unless the inclusion or ex- clusion of certain employees contravened the Act or established Board policy. There is no question but that it would contravene the policies of the Act and the Board knowingly to permit the ballots of supervisors to determine the results of the election. For this reason it would contravene such policy if by agreement of the parties supervisors were ir- revocably rendered eligible to vote. In the instant case, as the ballots of Pelto and Claspell were challenged on the ground of their su- pervisory status and statutory exclusion, the Union was not, under Norris-Thermador, precluded from raising the issue as to their eligibility.3 Further, the challenges were withdrawn in apparent reliance upon erroneous information and advice, which may have been given by the Board agent among others. Notwithstanding the absence of wrongdoing on the part of the Board agent, where a party to its detri- ment relies on inadvertently erroneous action or advice given by an agent of the Board, reversal may be required.4 Since we have found that the situation here is within the exception to the Norris-Ther- mador rule, contrary to the honest interpretation of the Board agent at the election and of the Hearing Officer, we find that the inclusion of the ballots of the two supervisors creates a doubt as to the validi- ty of the outcome of the election.' Under the cir- cumstances we shall set aside the election of May 22, 1969, and direct a second election. ORDER It is hereby ordered that the election previously conducted herein on May 22, 1969, be, and it hereby is, set aside. Lake Huron Broadcasting Corporation , 130 NLRB 908 See, e g , Natvar Corporation , 109 NLRB 1278, 1279-80, Pioneer Divi. sion, The Flintkote Company, 109 NLRB 1273, 1274-75 Cf Lake Huron Broadcasting Corp , supra ' See Lake Huron Broadcasting Corp , supra FISHER-NEW CENTER COMPANY 811 [Direction of Second Elections omitted from publication. ] 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Un- dern,ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly , it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 7 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed HEARING OFFICER'S REPORT ON OBJECTIONS Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 7 of the National Labor Rela- tions Board, herein called the Regional Director and the Board, respectively, on May 9, 1969, an election was conducted by Region 9 of the Board on May 22, 1969, among the employees of the Em- ployer in an appropriate bargaining unit' to deter- mine whether or not they desired to be represented for the purposes of collective bargaining by the Petitioner. The tally of ballots served on the parties at the conclusion of the election showed that of ap- proximately 17 eligible voters, 16 cast ballots of which 8 were for the Petitioner, and 8 were against the Petitioner and none were challenged. Objections to the Conduct Affecting Results of the Election were timely filed by the Petitioner on May 29, 1969, and copies thereof were simultane- ously served on the other parties. The Regional Director conducted an investiga- tion of the objections and concluded that material and substantial issues of fact, including credibility resolutions, have been raised by these objections which could best be resolved by a hearing, and he so ordered a hearing and issued a Notice of Hearing herein on June 9, 1969. The Regional Director further ordered that the Hearing Officer designated to conduct the hearing shall prepare and cause to be served on the parties a report containing resolu- tions of credibility of witnesses, findings of fact, conclusions of law, and recommendations to the Board concerning the disposition of the issues herein involved. Pursuant to the order of the Regional Director and the Notice of Hearing, a hearing was held on June 26 and July 29 and 30, 1969, at Detroit, Michigan, before this Hearing Officer. All parties ' The unit is as follows "All watchmen employed by the Fisher-New Center Co , at its locations in the present Fisher Building and in present New Center Building, excluding all other employees and all supervisors as defined in the Act " were present or represented by counsel, and were afforded full opportunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing on the issues . The decision herein is based upon my consideration of the record as a whole and my observation of the demeanor of the witnesses. The Objections 1. During the polling period of the election in the above-captioned case, petitioner's designated observer, Howard A. Tunell chal- lenged the ballots of two voters , R. Pelto and M. Claspell. Observer Tunell told the Board Agent conducting the election that these two voters were being challenged by the petitioner for the reason that both were supervisors within the meaning of the Act; Pelto being the chief of the employees in the unit described in the Petition in this case and Claspell being his assistant. After the voting had taken place and the time to vote had expired, and immediately prior to the counting of the ballots, petitioner, by its Vice President, Edson Waldrop, again in- fotmed the Board Agent that the petitioner was challenging the two ballots in question because the persons who cast the ballots were both supervisors. Mr. Waldrop informed the Board Agent that, as these two persons were supervisors, they were specifically excluded from the unit by virtue of the unit description in the Petition itself. However, despite the Board Agent's knowledge that these two challenges were based on the supervisory status of the two voters in question, the Board Agent, neverthe- less, allowed the petitioner's withdrawal of these challenges for the reason that the names of the two voters whose ballots the petitioner had challenged appeared on the eligibility list. The aforedescribed conduct was improper for two reasons: (1) two persons who are clearly supervisors within the meaning of the Act were permitted to vote; (2) the challenges as they were based on the supervisory status of the voters in question should have been resolved. The challenges should not have been allowed to be withdrawn. 2. R. Pelto and M. Claspell, both of whom are supervisors within the meaning of the Act were present in the polling area during the time of the election. Their presence, as agents of the Employer, violated the Board's prohibition against the presence of either party in the elec- tion area during voting times. 3. Supervisors Pelto and Claspell engaged in conversation with voters while the latter were in the polling are (sic) and in line to vote. This 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct on their part violated the Board's Milchem (170 NLRB 362) rule.2 Prior to the election in this matter, on May 9, 1969, the parties met in a preelection conference and both parties signed a Norris-Thermador3 eligi- bility list (Board Exh. 2). On the day of the elec- tion, May 22, 1969, the Petitioner's observer (Howard A. Tunell) challenged two voters, R. Pelto and M. Claspell, both of whom were on the eligi- bility list. The challenges to these men voting were based on the claim that the two men were super- visors. After the election, and immediately prior to the counting of the ballots, Petitioner, by its Vice President Edson Waldrop, again informed the Board agent that the Petitioner was challenging the two ballots in question because the persons who cast these ballots were supervisors. Then the Em- ployer's representative, either Mr. Caminker or Mr. Leonard Preuett, asked Waldrop if Waldrop was aware of the (May 9) meeting. Mr. Waldrop said that he was. Then Mr. Caminker (or Preuett) told Mr. Waldrop that the voting eligibility list was ap- proved by both the Petitioner and the Employer at that May 9 meeting. Then the Board agent, con- ducting this election, confirmed to Mr. Waldrop that this eligibility list had been approved by both the Petitioner and the Employer. Waldrop asked to see this eligibility list. The Board agent got the list and showed it to Waldrop, pointing out the names of Pelto and Claspell and said that they were eligi- ble to vote. The Board agent then asked Waldrop what Waldrop's position was on these two chal- lenged ballots. Waldrop stated that he was not aware of what had occurred at the (May 9) meeting (i.e., the parties agreeing to the eligibility list). Wal- drop then said, that under the circumstances, he would withdraw the challenges. Then, the Board agent wrote out on the back of the challenged en- velopes of Pelto and Claspell, the following: "This employee is eligible to vote because he is a non-su- pervisory employee within the unit described in the Notice. This stipulation is final and binding," and Waldrop and the Employer's representative, Caminker, signed it (Board Exhs. 3(a) and (b)). Then the ballots, including those of Pelto and Claspell, were counted and the tally taken and cer- tified. As pointed out above, the Norris-Thermador list is final and binding if its language so provides, un- less to consider it thus would be contrary to the Act or to the Board's policy. See also Lake Huron Broadcasting Corp., 130 NLRB 908, 909 (1961), where the employer challenged a voter on the basis of his being a supervisor, and although a Norris- Thermador list had been signed, the Board per- mitted the challenge since it was contrary to the Act to include supervisors. See also Pyper Construction Company, 177 NLRB 707 (1969) where the Board agent challenged a voter who was inadvertently left off the Norris-Thermador list signed by the parties. The Board held that it would honor concessions made in the interest of expeditious handling of representation cases, even though there may be some question about including certain employees in the unit, or excluding them from it, were the matter litigated. This case followed the Norris-Thermador case. Note that in the above cases, the Board was deal- ing with challenges. In the instant case, the Peti- tioner, after discussing the matter with both the Employer's representative and the Board's agent withdrew the two challenges, and therefore, after the tally of ballots was made, there was no challenge to any of the ballots. And this is so reflected in the Regional Director's Report and Notice of Hearing issued on June 9, 1969 (Board Exh. 1(a)). In the instant case, the Petitioner is using objec- tions to attempt to challenge the ballots of two voters. This is considered a postelection challenge and a kind that the Board does not permit. A case quite similar to the instant one is Fulton Bag and Products Company, 121 NLRB 268, 269-270 (1958). There, when a voter (Fink) showed up for the Board's conducted election, one of the em- ployer's observers stated that she wanted to chal- lenge a voter on the grounds that he was a foreman (supervisor). The Board agent and the observers checked the eligibility list and found that the voter's name appeared thereon. The Board agent noted that the employer had prepared the eligibility list, and it apparently did not consider the voter a supervisor. The observer made no further com- ment, nor did the observer reiterate any further challenge. The Board, in adopting the Regional Director's above findings, held that under all the circumstances of the Fink situation, it was reasona- ble for the Board agent to assume the employer's observer had withdrawn the challenge and that, in allowing Fink to vote, the Board agent was not act- ing over the protest of the employer's observer. The Board noted in the Fulton Bag case, that where the eligibility list is prepared by the employer and ap- proved by the other parties to the election, it may be presumed that the list is correct. The Board noted (footnote 5) further, that if an observer for any party then challenges any person appearing at the polls, it is not improper for the Board agent to ascertain the reason for the challenge, and to call the observer's attention to the fact the name of the challenged voter appeared on the list. Such conduct by the Board agent serves to prevent groundless challenges and unnecessary delay in the certifica- tion of results and it is essential to the orderly con- duct of the election. Any observer may for good During the hearing herein, the Petitioner withdrew Objection 3 ' Norris-Thermador Corp , 119 NLRB 1301 ( 1958) Here, the Board held that, where parties enter into a written and signed agreement which ex- pressly provides that the issues of eligibility resolved therein shall be bind- ing and final upon the parties , the Board will consider such an agreement a final determination of the issues, unless at is in part or in whole, contrary to the Act or Board policy FISHER-NEW CENTER COMPANY 813 cause insist on the right to challenge and the Board agent is obliged to accept the challenge. In the Ful- ton Bag case, it did not appear that the observer for the employer continued to claim the right to chal- lenge after the examination of the list disclosed the voter's name. The Board noted that under these cir- cumstances the employer's claim of improper con- duct on the part of the Board agent to be without merit. In this Fulton Bag case, the Board having adopted the Regional Director's finding that no challenge existed, found that it was not necessary for the Board to pass on Fink's supervisory or nonsu- pervisory status. The Board stated that, if no chal- lenge existed, then the objection to Fink's ballot is in the nature of a postelection challenge, and one that will not be considered by the Board. See Sears Roebuck & Co., 114 NLRB 762 (1955). There, the Board held that postelection challenges which were advanced under the guise of objections to an election were not recognized by the Board, and for purposes of results of an election, challenged voters were considered as in unit despite status as super- visors. See N.L.R.B. v. A. J. Tower Company, 329 U.S. 324. Therefore, I recommend to the Board that the Objections to the Conduct Affecting the Results of the Election be dismissed in their entirety. First, these are postelection challenges which the Board does not permit. Second, there was no improper conduct on the part of the Board agent in bringing the facts of the signing of the Norris-Thermador eligibility list to the attention of the Petitioner's representative at the time that the representatives renewed the Petitioner's observer's challenges to two ballots. See footnote 5 in Fulton Bag case above, for Board's finding and conclusion that such conduct on the part of Board agent is not improper, and expedites the handling of representation cases, serves to prevent groundless challenges, and to prevent unnecessary delays in the certification of results. As noted above, the third objection was withdrawn by Petitioner during the hearing herein. Therefore, on the basis of the above record as a whole, I find and conclude that the objections should be dismissed in their entirety. RECOMMENDATIONS Based upon my findings and conclusions above, I recommend that the Board dismiss the Objections in their entirety. Any party may within 10 days from the date of the issuance of this report file with the Board in Washington, D.C., eight copies of exceptions to such report in accordance with Section 102.69 of the Board's Rules. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other parties and shall file a copy with the Regional Director of Region 7. 184 NLRB No. 92 HEARING OFFICER'S SUPPLEMENTAL REPORT ON OBJECTIONS On September 26, 1969, the Hearing Officer is- sued his Hearing Officer's Report on Objections in the above matter, recommending that the Peti- tioner's Objections to the Conduct Affecting the Results of the Election be dismissed in their en- tirety for the reasons stated in such report. The Board, on February 13, 1970, ordered that this proceeding be remanded to this Hearing Officer for a determination concerning the supervisory status of R. Pelto and M. Claspell. The Board therein further ordered that the Hearing Officer shall prepare and cause to be served on the parties a sup- plemental report containing resolutions of the credibility of witnesses, findings of fact, and recom- mendations to the Board as to the disposition of said issues. Supervisory Status of R. Pelto and M. Claspell An election was held on May 22, 1969, among the employees of the Employer in an appropriate bargaining unit' to determine whether or not these employees wished to be represented by the Peti- tioner for the purposes of collective bargaining. At the time, there were three shifts of 8 hours duration at the Fisher-New Center Buildings. These two buildings are across the street from one another, the Fisher Building being the main building, and the New Center Building being its annex, with an un- derground tunnel connecting the two, and the two, along with their parking lots being the premises of the Employer. The Employer's watchmen work on three shifts, the first with four men being from 8 a.m. to 4 p.m., the second with five men being from 4 p.m. to midnight, and the third with four men being from midnight to 8 a.m. Sometimes, when the security needs arise, men work overtime. R. Pelto, whom the Employer calls the "leader" (and the men call "chief") is in charge of these above watchmen. M. Claspell, whom the Employer calls the second man in charge (the men call him the "assistant chief"), is in the number 2 spot. Pelto works the first shift and Claspell works the second shift, ordinarily. Since Employer's Administrative Manager Leonard Preuett testified that (1) when Pelto is absent, that M. Claspell takes Pelto's place, and has pretty much the same duties, and that further (2) this happened during the long period from November 1967 through April or May 1968, and at a number of later times, I am going to ex- amine the powers and duties of Pelto, and decide both men's supervisory status on the basis of whether Pelto was a supervisor during the material times. ' The unit is as follows "All watchmen employed by the Fisher-New Center Co , at its locations in the present Fisher Building and in the present New Center Building, excluding all other employees and all supervisors as defined in the Act " 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Witness ( guard ) Edward Kwilos testified that about April or May, 1969, before the election of May 22, 1969, Leonard Preuett, administrative manager, and John Weinandy, building superinten- dent reporting to Preuett, held an employee meet- ing among the guards and told them to respect their supervisors, listen to their orders, and to obey their orders. Although Kwilos testified that he con- sidered Pelto and Claspell chief and assistant chief, and both actually as bosses, Kwilos testified that in this meeting the "supervisors" were not identified by management. However, I find and conclude that Preuett and Weinandy were referring to Pelto and Claspell as supervisors since these two would be the two men that would be giving the watchmen their orders on a regular basis, and the two with whom the watchmen would have contact; further, Kwilos testified he knew who these "supervisors" were; he considered Pelto and Claspell the "bosses" over the watchmen, as did watchmen Tunell and Smith. The assignments of the guards are made through a weekly work schedule prepared by Pelto and ap- proved by Weinandy. These are posted on the guard's bulletin board. As an employer policy, Pelto has the right to make minor schedule changes (including authorizations of minor overtime), but that Weinandy makes the major changes. However, employees Tunell, Smith, and Kwilos testified that they asked for or heard others (all guards) ask for time off, and that Pelto decided the matter on the spot without consulting others. This decision in- volved as much as 8 hours. According to Weinandy, Pelto discussed appli- cants who sought jobs with Weinandy, after Pelto or Weinandy interviewed them, and gave his, Pel- to's opinion concerning them. On a number of oc- casions, Pelto was the interviewer. And Administra- tive Manager Preuett testified that Pelto made recommendations concerning applicants, but did not have the authority to hire. Preuett acknowledged that some weight was attached to Pelto's recommendations, but that the final deci- sion to hire was retained by Pelto's supervisors (Weinandy and Preuett). According to Preuett, Pelto could make recom- mendations concerning guard employees, with reference to wage increases and promotions, and these recommendations would be given some weight. Again, Pelto could recommend changes in the work schedules of the guards, but Weinandy ap- proved them, according to Preuett. Pelto and Claspell use the same desk in an office off the underground concourse between the two buildings, and they prepare accident reports, a daily journal concerning matters that need special atten- tion (e .g. the removal of furniture at night from an office , the need to patrol certain areas just after school lets out, the loitering of undesirables in the building, etc.), and the daily time records of the guards which are initially by Pelto and Claspell (Claspell initials when Pelto is absent from work). Where accident reports are prepared by watchmen, they are initialled by Pelto, and after being reviewed by Pelto's superiors, they are returned to Pelto to be kept in his files; if the accident report is incomplete , Pelto will make an additional investiga- tion. According to John Weinandy, Weinandy has in- structed Pelto to keep his eye on various employees when there are problems with the watchmen, and Pelto discusses the men and their behavior with Weinandy from time to time; Pelto has the right to correct the watchmen if he sees them not perform- ing their duties, or performing them in a sloppy manner , and the watchmen are expected to obey him, and do so. According to Superintendent Weinandy, it would be normal for the employees to come to Pelto with their grievances, and for Pelto to adjust minor grievances. With regard to the question of whether or not Pelto can hire, the testimony of employee Tunell suggested that Pelto hired Tunell. However, Su- perintendent Weinandy, without contradiction, testified that he had been involved (from the beginning) in the hiring of Tunell, having made the initial contact with the Fisher Building tenant that had been Tunell's employer, and had handled it at the various stages of Tunell's application for em- ployment Likewise, with the case of the hiring of watchman Cotten: although Pelto interviewed Cot- ten and took his application for employment, Ad- ministrative Manager Leonard Preuett testified without contradiction that Weinandy had had an in- itial interview with Cotten concerning this watchmen's "moonlighting" employment at Fisher- New Center in addition to Cotten's United States Government employment, and had made sure that the United States Government had no objection to Cotten's second Fisher watchmen employment be- fore Cotten was approved for employment by Preuett and Weinandy; of course, Tunell would know nothing about this confidential investigation and checking, and approval for employment. And Preuett denied that Pelto had any authority to hire employees. Pelto, and Claspell both punch timecards, as do the other watchmen; both are hourly rated and receive the same fringe benefits that the other watchmen receive; they both wear uniforms as the other watchmen; Claspell receives 22 cents above the other watchman, and Pelto receives 25 cents above Claspell. From the above, I find and conclude that Pelto and Claspell are supervisors, and were so at all times material herein , within the meaning of Sec- tion 2(1 1) of the Labor Management -Relations Act, as amended, herein called the Act. I find and conclude this from the above facts that (1) both Pelto and Claspell had the authority to responsibly direct the work force of guards on three shifts-1 1 men in all (Claspell taking over in Pelto's absence) using their own judgment; (2) the guards were specifically instructed by top management to obey FISHER-NEW CENTER COMPANY 815 these two men (Pelto and Claspell) at a manage- ment meeting just before the Board-conducted election of May 22, 1969; (3) the watchmen con- sidered Pelto and Claspell their "bosses"; (4) Pelto (and therefore, Claspell) had the authority to grant time off on the spot using his own judgment and did so (he sometimes refused it, using this judgment); (5) Pelto (and, therefore, Claspell, in Pelto's absence) could effectively recommend the hiring, and wage increases and promotions of watchmen; (6) Pelto and Claspell had the right to correct watchmen for poor behavior and the men were ex- pected to obey Pelto and Claspell; and (7) the men came to Pelto (and Claspell, in Pelto's absence) with their grievances, and these two men handled minor grievances of watchmen. Therefore, based upon my consideration of the record as a whole, and of my observance of the demeanor of the witnesses, I find and conclude that Pelto and Claspell were supervisors within the meaning of Section 2(1 1) of the Act at the time of the Board-conducted election on May 22, 1969. However, I recommend, again, that the Board dismiss the Petitioner's objections in their entirety in the instant matter for the reason that the Peti- tioner is using objections to attempt to challenge the ballots of these two voters, Pelto and Claspell. These are considered postelection challenges and a kind the Board does not permit. Second, I, again, find and conclude that there was no improper con- duct on the part of the Board agent in this matter in bringing the facts of the signing of the Norris-Ther- mador eligibility list to the attention of the Peti- tioner's representative at the time of the Board- conducted election when the Petitioner's represent- ative renewed the Petitioner's observer's chal- lenges to these two ballots. My reasons for my recommendation and my findings and conclusions are all stated in detail in my original Hearing Of- ficer's report dated September 26, 1969.2 There- fore, on the basis of the above record as a whole I find and conclude that the objections should be dismissed in their entirety, and I recommend that the Board do so. Any party may, within 10 days from the date of issuance of this Supplemental Report, file with the Board in Washington, D.C., eight copies of excep- tions to such report in accordance with Section 102.69 of the Board's Rules. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other parties and shall file a copy with the Regional Director for Re- gion 7. 2 As noted in the original Hearing Officer 's Report on Objections, Peti- tioner's Objection 3 was withdrawn by the Petitioner during the hearing herein Further, neither party offered any evidence at the hearing concern- ing Petitioner's Objection 2, except that Pelto and Claspell came in to vote and did vote ( originally under challenge ) and then left I find and conclude that this is not the type of conduct which the Board finds objectionable