F. Stauss & Sons, Inc.

F. STRAUSS & SON, INC. 583 F. Strauss & Son, Inc. and Retail Clerks Union Local No. 210 chartered by Retail Clerks International Association, AFL-CIO, Petitioner. Case 15-RC- 4703 February 25, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot was conducted among the employees in the stipulated unit described below. The tally of ballots furnished the parties showed that of approximately 156 eligible voters, 153 ballots were cast, of which 75 were for, and 73 against, the Peti- tioner; 4 were challenged. One ballot was declared void. The Petitioner filed timely objections.' In accordance with the National Labor Relations Board Rules and Regulations , the Regional Director conducted an investigation and, on December 16, 1971, issued and served on the parties his Report on Chal- lenges and Objections, recommending that the chal- lenge to the ballot of Stephen W. Laws be overruled, and that his ballot and the voided ballot be opened and counted; and that Objections 4 and 6 through 10 be overruled. The Regional Director found that Objec- tions 1 , 2, 3, and 5 presented issues which can best be resolved by a hearing, and, since the conduct involved in these objections is encompassed by a complaint which has issued in Case 15 -CA-4274, the two cases be consolidated for hearing before a Trial Examiner. The Regional Director further recommended that, in the event the revised tally of ballots reflects that the three remaining challenged ballots, cast by Victor Ogles, Louis Blake, and Charles Osborn, still affect the results of the election, the issues raised by these chal- lenges be included in the hearing on the consolidated cases. In the event Case 15-CA-4274 is settled, the Regional Director recommended that the hearing in the instant case be conducted by a Hearing Officer. The Employer filed exceptions to the Regional Director's recommendations regarding the challenged ballots cast by Osborn, Blake, and Ogles, and the voided ballot, and a brief in support of its exceptions. 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 au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding , the Board finds: ' The Employer's objections, filed October 22, 1971, were withdrawn November 23, 1971 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes 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 concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The parties stipulated and we find that the follow- ing employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All fulltime and regular parttime employees at Employer's Monroe, Louisiana, operations, in- cluding warehouse employees, cash and carry em- ployees, including cashier, stockers, loaders, un- loaders, order pullers, truck spotters, forklift operators, packroom employees, garage em- ployees, including mechanics and utility service employees, warehouse equipment maintenance and sanitation employees, truckdrivers and produce truck helpers, and warehouse clerical em- ployees; but excluding all other employees, includ- ing office clerical employees, professional em- ployees, salesmen, data processing employees, advertising and printing department employees, cash receivable clerk, watchmen and/or guards, inbound and outbound checkers and all other supervisors as defined in the Act. 5. The Board has considered the Regional Director's report and the Employer's exceptions and brief, and hereby adopts the Regional Director's findings, conclu- sions, and recommendations as modified herein.2 ORDER It is hereby ordered that the ballot cast by Stephen W. Laws and the voided ballot be opened and counted. If the Petitioner receives a majority of all the votes cast, it shall be certified. In the event the challenged ballots cast by Victor Ogles, Louis Blake, and Charles Osborn affect the results of the election, the issues raised by those challenges, and by Objections 1, 2, 3, and 5, will be consolidated with Case 15-CA-4274 for hearing ' In the absence of exceptions thereto, the Regional Director's recom- mendations that the challenge to the ballot of Stephen W Laws and Objec- tions 4 and 6 through 10 be overruled, and his recommendations with regard to Objections 1, 2, 3, and 5, are adopted pro forma. Though we agree with the Regional Director that the voided ballot should be counted, we do not rely on his statement that identification of the voter who cast his ballot was sheer speculation The circumstances related by the Regional Director indi- cate that the markings on the ballot were inadvertently made In the absence of evidence indicating that the ballot was deliberately marked for the pur- pose of identification, we will not disenfranchise a voter. Luntz Iron & Steel Co., 97 NLRB 909; Bridgeton Transit, 124 NLRB 1047. 195 NLRB No. 112 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before a Trial Examiner- to be designated by the Chief Hearing Officer to be designated by the Regional Direc- Trial Examiner. If Case 15-CA.-4274 is settled, then tor. the hearing in the instant case will be conducted by a