Mountain States Telephone and Telegraph Co.

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mountain States Telephone and Telegraph Company and Communications Workers of America, AFL-CIO, Petitioner. Case 27-RC-4542 November 26, 1973 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted in the above-entitled proceeding on June 6 and 8, 1973,1 under the direction and supervision of the Regional Director for Region 27 among the employees in the appropriate unit. At the conclusion of the balloting, the parties were furnished a tally of ballots which showed that, of approximately 1,200 eligible voters, 404 ballots were cast for the Petition- er, 49 were cast for Mountain States Independent Telephone Union, the Intervenor, 589 were cast against the labor organizations, and 5 ballots were challenged. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director conducted an investigation and on July 5 issued and served on the parties his Report on Objections. In his report, the Regional Director recommended that the Petitioner's objec- tion be sustained and a new election conducted. Thereafter, the Employer filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 purposes of the Act to assert jurisdiction herein. 2. The Petitioner and the Intervenor are labor organizations claiming to represent certain employ- ees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the Employer within the meaning of Section 9(c)(1) and Section 2(6) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All non-salaried employees of the Employer employed at its accounting centers located at Denver, Colorado; Salt Lake City, Utah; Albu- querque, New Mexico; and Phoenix, Arizona. 5. The Board has reviewed the Regional Direc- tor's report and the Employer's exceptions and affirms the Regional Director's findings only to the extent consistent herewith. The Petitioner alleges that the Employer assigned C. A. Punshon, a supervisor, or a person closely identified with the Employer, to serve as its observer at the Denver, Colorado, polling place and that his acting as an observer destroyed the laboratory conditions, which the Board seeks to establish for its elections, and thereby affected the outcome of the election. The Regional Director's investigation revealed that there was a preelection conference in Denver on June 5 at which the Employer provided the names of two observers neither of whom was Punshon. However, immediately before the polls opened in Denver, Punshon presented himself as an observer for the Employer and the Petitioner immediately objected on the ground that he was a supervisor. Although the Board agent in charge of the election pointed out that the selection of Punshon as observer could result in objections to the conduct of the election, Punshon nevertheless served in that capaci- ty at the Denver location where approximately 435 employees voted. The Regional Director's investigation further revealed the following: For approximately 25 years prior to September 1972, Punshon was employed as a supervisor in the accounting department where he directly supervised approximately 90 employees. Since the latter date, he has been assigned as manager of a new building housing the accounting department. Although he no longer directly supervis- es employees, Punshon serves as a liaison officer between the plant department, the accounting department, the engineering department, the build- ing contractor, and vendors with reference to installation of equipment, furniture, and facilities. The duration of this assignment may be indefinite, but it is anticipated that, upon completion of the assignment, Punshon will revert to his former position as supervisor in the accounting department. The Regional Director concluded as follows: The Board has held that supervisors and ".. . persons closely identified with the [e]mployer may not act as observers" and has set elections aside for those reasons.2 Punshon previously occupied, and will resume, a position involving substantial supervi- sory authority. His present temporary position is clearly not a demotion and involves an exercise of 1 Unless otherwise specified, the dates below refer to 1973. 952; and Worth Food Market Stores, Inc, 103 NLRB 259. 2 The Regional Director cites Peabody Engineering Company, 95 NLRB 207 NLRB No. 87 MOUNTAIN STATES TELEPHONE 553 substantial authority on behalf of management. In view of these facts, Punshon's presence as the Employer's observer resulted in the election being conducted in a manner which deviated from the Board's usual standards. As noted above, the Regional Director found that Punshon's current position is temporary and that he will return to his former status as a supervisor in the accounting department. However, Punshon's sworn statement to the Board agent provides no basis for the Regional Director's- finding as Punshon states therein that, "to the best of my knowledge, I will continue in my present capacity indefinitely." The cases relied on by the Regional Director are inapplicable to the facts herein. Thus, in Worth Food Market Stores, supra, the Board found that supervi- sors may not act as observers for an employer. In Peabody Engineering, supra, which involved the employer's attorney, the Board held that he could not properly serve as an observer because he was a person "closely identified with the employer." 3 As Punshon is not a supervisor and does not occupy a position which closely identifies him with the Employer, we find that his serving as the observer for the latter did not interfere with the conduct of the election. We therefore find, contrary to the Regional Director, that the Petitioner's objection is without merit. As neither the Petitioner nor the Intervenor has secured a majority of the valid votes cast, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of valid votes has not been cast for Communications Workers of America, AFL-CIO, or Mountain States Independ- ent Telephone Union, and that neither of the said labor organizations is the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(c) of the Act. 3 See also Parkway Lincoln-Mercury Sales, Inc., 84 NLRB 475, and International Stamping Co., Inc., 97 NLRB 921, wherein the Board found that a company vice president and relatives of such an official were persons closely identified with the employer.