K. Van Bourgondien & Sons, Inc.,

268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD K. Van Bourgondien & Sons, Inc., Employer-Peti- tioner and Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 29-RM- 752 May 26, 1989 SUPPLEMENTAL DECISION, DIRECTION, AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered objections to an election conducted December 18, 1987, and chal- lenges, and the attached administrative law judge's decision recommending disposition of them.' The Board has also considered the Regional Director's supplemental report on objections, dated May 17, 1988, recommending disposition of the Union's motion for reconsideration of Objection 1. The Board has reviewed the record in light of the exceptions and briefs. 1. The Board adopts the judge's decision recom- mending that the objections be overruled. With the exception of the judge's recommendation concern- ing challenges to second-shift employees, the Board also adopts all of the judge's recommendations about challenged ballots. The Employer operates a second shift on 4 weekday afternoons and early evenings and on Sat- urday mornings. The shift operates about 24 hours a week. Employees on the shift are engaged in commercial packaging, performing the same duties as some employees on the 8-hour, first shift. At the time the Employer recognized the Union in 1985, it employed only students on the second shift. The first collective-bargaining agreement be- tween the Employer and the Union, effective from February 27, 1985, through February 26, 1987, did not refer expressly to second-shift or part-time em- ployees, but specifically excluded "student employ- ees." It defined student employees as "those em- ployees who are hired . . . normally for Saturday and/or a second shift scheduled after school hour operation or when school is not in session. Not more than 22-1/2 hours a week except Easter week or mid-winter recess." At the time of the election, conducted on De- cember 18, 1987, the second-shift employed nine adults, who had been hired after the collective-bar- gaining agreement expired. They performed the ' On April 27, 1988, the Board issued a Decision, Order, and Direction overruling the Union's Objections 1 and 8 , noting withdrawal of Objec- tion 2, and directing a hearing on the remaining objections and on 36 challenged ballots same work that the students performed, and worked fewer hours per week than the 24 hours the shift operated. These second-shift, part-time employees voted challenged ballots pursuant to the provision of the stipulated election agreement that part-time employees might vote subject to chal- lenge. The judge overruled the Union's challenge to the ballots of the disputed second-shift employees and recommended that their ballots be opened and counted. He relied on the community of interest they shared with other employees included in the bargaining unit and the fact that they were not ex- cluded by the Stipulated Election Agreement. We disagree that community of interest is the appropri- ate test for determining the eligibility of the second shift employees, and we disagree with the judge's conclusion that they are eligible to vote. The facts show that second-shift employees have not been included in the established unit. While the nine challenged employees are not students, they work the schedule of hours and the number of hours set forth in the contract definition of "stu- dent employees" who were excluded from the con- tract unit. By excluding student employees, the contract excluded all second-shift, part-time em- ployees; and the nine challenged employees have never been included, in fact, in the unit for which the Union was recognized as bargaining representa- tive. Because an employer's petition for an election must be predicated on a union's claim to be a Sec- tion 9(a) representative, the voting unit is generally the unit claimed by the union to be appropriate.2 When, as here, the union is the incumbent, the voting unit is coextensive with the recognized unit, i.e., the unit for which the union claims to be the continuing exclusive representative. As the recog- nized unit in this case has not included the disputed second-shift employees, we sustain the challenges to their ballots.3 2 This requirement is inherent in Sec 9(c)(1)(B) of the Act, which per- mits an employer to petition for an election to test a union's claim to be the Sec 9(a) bargaining representative Sec 102 61(b) of the Rules and Regulations, which implements Sec 9(c)(1)(B), requires an employer's pe- tition to contain a brief statement that a union has presented to the em- ployer "a claim to be recognized as the exclusive representative of all employees in the unit claimed to be appropriate" See also, e g , Sonic Knitting Industries, 228 NLRB 1319, 1320 (1977), and Westinghouse Elec- tric Corp, 129 NLRB 846, 847 (1960) The limited exception to this requirement is when the claimed unit is contrary to the purposes of the Act, such as a unit including supervisors No such exception is present in this case 3 The disputed second-shift employees are Czerepski, Durante, Hur- kacz, Jakubaczyk, Kazio, Kowalewski, Prosa, Romaneck, and Zmitrowicz Hurkacz' name was inadvertently omitted from the judge's summary of recommendations 294 NLRB No. 16 K VAN BOURGONDIEN & SONS 2. The Board adopts the Regional Director's rec- ommendation in his supplemental report on objec- tions and denies the Union's motion for reconsider- ation of Objection 1. Objection 1 alleged that the Employer had given an overall wage increase in February 1987 and "other increases." In its original decision in this case the Board overruled objection 1, adopting the Regional Director's recommendation that the over- all increase was not objectionable in the circum- stances shown, and that the evidence did not sup- port a finding that other wage increases were given. In its motion to reconsider, the Union contends that the Employer also gave an overall wage in- crease in September 1987 and that the Union did not know of that increase when Objection 1 was originally investigated. We agree with the Regional Director that the Union has not shown that evi- dence of a September 1987 overall wage increase was newly discovered or previously unavailable. As the Regional Director pointed out, at the time of the original investigation of objections in De- cember 1987 the Union had information that one employee had increases greater than the February 1987 increase, and this was sufficient to put the Union on notice of possible increases in addition to the one of February 1987. Although the evidence the Union urges in its motion may be related to the original Objection 1, it was not timely presented.4 3. In adopting the judge's recommendation to overrule Objection 3, which concerned the retriev- al of a challenged ballot from the ballot box so that it could be placed in a challenged ballot envelope and the sealed envelope then placed in the ballot box, we emphasize the following particular circum- stances. Although the challenged voter initially put her marked ballot in the ballot box without using the challenged ballot envelope, the judge found that the Board agent had been able to retrieve the challenged voter's ballot because it was on top of the pile, just under the opening. Further, the judge found that the voter was able to identify the ballot as hers because of a fold on a corner she had made. Finally, the judge found that the vote on the ballot had been revealed to no one other than the chal- lenged voter herself. We decline to adopt the per se rule regarding ballot retrieval embraced by our dissenting colleague and conclude instead, on the basis of these factual findings-which are not chal- lenged-that the balloting process was not compro- mised. Consequently we conclude that the Board 4 See Board's Rules and Regulations , Sec 102 69(a) See also White Plains Lincoln Mercury, 288 NLRB 1133 fn 24 (1988) (discussing the Board's policy of discouraging piecemeal submission of evidence) and Burns Security Services, 256 NLRB 959 (1981) 269 agent's conduct was not prejudicial to the interests of either party to the election or to the employees who exercised the right to vote, 'and therefore adopt the recommendation to overrule Objection 3. DIRECTION IT IS DIRECTED that the Regional Director for Region 29 shall, pursuant to the Board's Rules and Regulations, and within 14 days of the date of this decision, open and count the ballots of the follow- ing individuals, and thereafter issue and serve on the parties a revised tally of ballots and the appro- priate certification: Sheryl Bettinger Betty Matulchi Beatrice Flaherty Gaetano Parisi Ann Busaca Mary Ellen MacKenzie Darryl Grey Kathy Russo Vincenzo Furci Lorraine Tramontana Ruth Schilling Lillian Kaplan Fae Ferrante Penny Nelson Vincent Weiss Margaret Wellbrook The ballots of the following individuals shall remain unopened and uncounted: Michael Beltz Jesse D'Bella James Strickland Carrie Lagendyk Veronica Reilly Agnes Stroh Andrew Hill Bogdan Kazio Maria Prosa Maryla Hurkacz Diane Desser Antonio Destetano Pat Fitzpatrick Mellis Foisset Miron Czerepski Vincenza Durante Stanislaw Jakubczyk Edward Kowalewski Feliks Romaneck Edmund Zmitrowicz ORDER IT IS FURTHER ORDERED that this matter is re- manded to the Regional Director for Region 29 for further processing consistent with this Supplemen- tal Decision, Direction, and Order. MEMBER JOHANSEN, dissenting. This election should not be allowed to stand. A challenged voter, disregarding the instruction of the Board agent, deposited her marked ballot di- rectly into the ballot box. The Board agent held up the voting and proceeded to "fish out" a ballot. The challenged employee then asserted that it was, in fact, her ballot. The Union objected to this unsettling incident and now excepts to the administrative law judge's finding that it was unobjectionable. I agree with the Union. This is conduct that the Board should not toler- ate. Without any regard to whether or not the 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board agent, or we, should depend on the veracity and (even more importantly) the accuracy of the voter in identifying the ballot, the spectacle of a Board agent fishing in the ballot box for a ballot requires the election be set aside.' ' Jakel, Inc, 293 NLRB 615 (1989) Elias Feuer, Esq., for the General Counsel. James J. Dean, Esq. and James E. McGrath III, Esq. (Putney, Twombley, Hall & Hirson), for the Employer. Jon Quint, Esq. and Sidney Levy, Esq. (Markewich, Frie- dron & Markewich P.C.), for the Union. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge This case was heard by me in March 1987 in New York, New York. The Employer, on 24 December 1986 filed this peti- tion seeking to decertify the Union which had been vol- untarily recognized on 27 February 1985 A Stipulated Election Agreement was executed by the parties and approved by the Regional Director for Region 29 of the National Labor Relations Board on 24 November 1987. An election by secret ballot was con- ducted on 18 December 1987, in the following unit: All year-round and seasonal employees, production packaging, warehouse and maintenance employees, including truck drivers , and assistant managers em- ployed by the Employer at its West Babylon loca- tion, but excluding all department managers, office clerical employees, student employees, relatives of management, guards and supervisors as defined in the Act.' The tally of ballots served on the parties following the election showed the following results: Approximate number of eligible voters-125 Number of Void ballots-30 Number of Votes cast for labor organization-42 Number of Votes cast against participating labor organization-55 Number of valid votes counted-97 Challenged ballots-36 Valid votes counted plus challenged ballots-133 On 28 December 1987, Local 810 filed timely objec- tions to conduct affecting the results of the election, copies of which were served on the Employer-Petitioner. Subsequently, on 8 February 1988 the Regional Director issued a report on challenges and objections and notice of hearing. In that report he overruled Objections 1 and 8. (The Union had previously withdrawn its Objection ' The parties agreed, as part of the Stipulated Election Agreement, that part-time seasonal employees should vote subject to challenge 2.) Therefore, a hearing was ordered for the following objections which read: 3. During the conduct of the election, an unenve- loped challenged ballot was placed into the ballot box and thereafter removed by the Board Agent conducting the election. This act destroyed the ap- pearance of an impartial secret ballot election. 4. During the conduct of the election, non-eng- lish speaking voters received what appeared to be translations of the Board Agent's instruction from other voters in the voter's native language when neither the observer nor Board Agent were in a po- sition to understand or monitor such translation. This conduct appears to allow electioneering or allows for improper instruction. 5. On December 18, 1987, the Employer visited homes of the employees and drove them to the poll- ing areas. 6. On or about February, 1987, the Employer, acting through John Van Bourgondien threatened to move the plant if the Union was successful at an election. 7. On or about December, 1987, the Labor Board sent notices of election to individual Bargaining Unit Members without prior agreement or notice to the parties. Thirty-six challenged ballots were cast in the election. Fifteen voters were challenged by the Board because their names did not appear on the voter eligibility list. The Union contends that these 15 voters were eligible to vote because they were participants in an ongoing eco- nomic strike which began on 27 February 1987. The Em- ployer contends that these 15 employees are ineligible to vote either because they did not participate in the strike or because they abandoned the strike and found "regular, substantially equivalent, employment elsewhere" prior to the date of the election. The names of these 15 voters are. Ann Busaca Penny Nelson Diane Desser Gaetano Parisi Antonio Distefano Kathy Russo Fae Ferrante Ruth Schilling Pat Fitzpatrick Lorraine Tramontana Mellis Foisset Vincent Weiss Lillian Kaplan Margaret Wellbrock Betty Matulchi The Union challenged nine voters who were part-time employees. It contends that these part-time employees were excluded by the parties from the contractual bar- gaining unit and therefore should not be eligible to vote. They are: Miron Czerepski Edward Kowalewski Vincenza Durante Maria Prosa Maryla Hurkacz Feliks Romanek Stanislaw Jakubczyk Edmund Zmitrowicz Bogdan Kazio K VAN BOURGONDIEN & SONS The votes of Michael Belz, Jesse D'Bella, and James Strickland were challenged by the Union on the grounds that they were students and that their exclusion was stip- ulated in the election agreement. Sheryl Bettinger, Beatrice Flaherty, and Mary Ellen MacKenzie, all of whom have the title of assistant man- ager, were challenged by the Union. It contends that al- though assistant managers were specifically included as voters in the election agreement, they nevertheless should not vote because they are supervisors as defined in Section 2(11) of the Act. Three voters were challenged because they allegedly were no longer employed by the Employer on the date of the election. The Union challenged Darryl Gray and Vincenzo Furci and the Employer challenged Andrew Hill. The Union challenged the vote of Carrie Lagendyk, alleging that she is a relative of one of the Employer's owners. The Employer for its part challenged the votes of Veronica Reilly and Agnes Stroh on grounds that they are relatives of supervisors. Based on the record as a whole, including my observa- tion of the demeanor of the witnesses and after consider- ing the argument of counsel, I make the following FINDINGS AND CONCLUSIONS A. The Objections 1. Objection 3 The election was held on 18 December 1987 in two sessions; one in the morning at a public library and the other in the afternoon at the Company. Each side had two observers and there was one Board agent responsi- ble for conducting the election. In the afternoon session after most of the people had voted, Lorraine Tramontana appeared and was chal- lenged by the Board agent because her name did not appear on the voter eligibility list 2 (As discussed below the Company took the position that, although she was an economic striker, she had gotten employment elsewhere and had abandoned the strike.) The Board agent gave her the standard instructions to mark her ballot in the voting booth, to fold it up, and to return it to him so that the ballot could be put into a separate challenged ballot envelope before being placed in the ballot box.3 Tramon- tana, however, disregarded these instructions and instead placed her ballot directly into the ballot box. When this was discovered, the Board agent, after some consterna- tion, held up the voting and decided to attempt to fish out Tramontana's ballot from the box. This he managed to do because her ballot was at the top of the pile, just under the opening By using a pen, he was able to put it 2 In this case the Excelsior list was used as the eligibility list This was prepared by the Employer and contained the names and addresses of those people the Employer believed were eligible to vote in accordance with the election agreement 9 When the eligibility of voters are challenged their votes are placed in challenge envelopes so that a later determination can be made, if needed, whether their votes should be counted If they are found to be ineligible, the envelopes are not opened If they are found to be eligible, the enve- lopes are opened and the votes counted Care is taken, to the extent pos- sible, to keep the ballots secret 271 under the fold (the ballot had been folded in half), and bring it out through the slot. He showed the ballot to Tramontana and asked her if this was her ballot. She re- sponded affirmatively, stating that she recognized it be- cause she had folded a corner when handling it. She also confirmed that this was the way she had voted, and pro- ceeded to place the ballot in the challenge envelope which was then sealed and deposited into the ballot box. At no time was the vote on the ballot shown to or re- vealed to anyone other than Tramontana In Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S 1010 (1970), the Board stated- Election procedures prescribed by the General Counsel or a Regional Director are obviously in- tended to indicate to field personnel those safe- guards of accuracy and security thought to be opti- mal in typical election situations These desired practices may not always be met to the letter, some- times through neglect, sometimes because of the ex- igencies of circumstance. The question which the Board must decide in each case in which there is a challenge to conduct of the election is whether the manner in which the election was conducted raises a reasonable doubt as to the fairness and validity of the election. In OK Van & Storage Co., 122 NLRB 795, 797 ( 1958), the Board overruled an objection where, after almost all eligible voters had voted, the Board agent reached into the ballot bag and pulled out a ballot to show the ob- servers how a ballot should be marked to be valid. The Board stated: Considering that it was the Board agent who han- dled the ballot, the purpose of its removal, and the absence of any evidence to show that the secrecy of the ballot was thus impaired, we find, in agreement with the Regional Director, that this objection is also without merit, and is overruled. In the present case, I think the Board agent's reaction to an unusual situation was reasonable. He was faced with the choice of either letting the challenged voter evade his instruction by placing her ballot directly into the ballot box or with trying to retrieve it as best he could. The fact is that he did retrieve Tramontana's ballot without divulging its contents to any other person present (including himself), and placed it into the chal- lenge envelope where it belonged. I therefore recom- mend that this objection be overruled. 2. Objection 4 During the course of the election , two voters came to the polls and, because they did not understand English, did not understand the Board agent's instructions vis-a- vis the voting. They did appear, however, with persons who could translate and the Board agent repeated his in- structions to the translater who spoke to the voter. In one instance the voter was an Italian woman who came with her daughter (also an employee), who did the trans- 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lating. In the other case, the voter spoke Polish and there was someone there who was able to translate. Each voter cast a ballot without incident. There were approximately 125 eligible voters accord- ing to the tally, of ballots. Of these, it appears that a number spoke Italian or Polish. This is evidenced by the fact that the notice of election was printed in English, Polish, and Italian. Nonetheless, of the total number who voted, only two persons required the services of a trans- later and there is no evidence that either party, prior to the election, notified the Board that an official translater would be required or even desirable at the polls. In such circumstances, I can see nothing improper in the fact that two individuals received their voting instructions through translations by other voters.4 I therefore recommend that this objection be over- ruled. 3. Objection 5 The Union alleges that during the election the Em- ployer drove certain employees to the polling area. In this regard, the evidence shows that the Company did drive two employees to the Company during the elec- tion, these being Mary Hartman and Isabella Broderick. The evidence shows that the Company has customarily driven both of these persons to work because Hartman requires a wheelchair and Broderick has no car or other means of transportation The evidence also shows that on one other occasion during the election an employee was driven from the plant to her home and back because she could not produce identification when asked to do so by the union observer. I recommend that this objection be overruled. 4. Objection 6 The Union contends that in February 1987 the Em- ployer, by John Van Bourgondien, threatened to move the plant if the Union won the election The evidence shows that the Union scheduled a strike for 27 February 1987,. In anticipation of this strike the Employer held three meetings with separate groups of its employees on 26 February. Joseph Van Bourgondien, one of the owners, spoke to a group of about 35 women and he is alleged to have threatened to move the Compa- ny to Pennsylvania. A close reading of the testimony of the employees who testified to the meeting tends to corroborate the credible testimony of Van Bourgondien to the effect that he told the employees that if there was a strike, the Company would continue to operate at its present loca- tion; that he hoped they would come to work notwith- standing a strike; and that the Company had its roots in West Babylon and did not intend to move despite the fact that some years ago it had been offered various tax and other benefits to move. 4 See Regency Hyatt House, 180 NLRB 489, 498 (1969) Cf Kerr Glass Mfg Corp, 168 NLRB 802, 803 ( 1967) In the latter case, the Board upheld an the validity of election in which only English language ballots were used in a situation where there were a significant number of non- English-speaking voters, but where the notices had been translated into the relevant languages While it is conceivable that a few employees may have misconstrued and read into Van Bourgondien's remarks a threat to move, I do not think that this was either said or intended. I therefore recommend that this objection be overruled. 5. Objection 7 The Union contends that in December 1987 Region 29 sent notices of election to the prospective voters "with- out prior agreement or notice to the parties." Apparently what the Union really objects to, however, is that a siza- ble number of people did not receive such notices be- cause their names and addresses were not furnished to the Region by the Employer by way of the Excelsior list. The Board's Regional Office decided to mail out copies of the notices of election to the prospective voters because there were a significant number of employees who would not see the notice at the plant because they were on strike. These notices were mailed to the people set forth on the Excelsior list furnished by the Employer prior to the election. When the Union received a copy of the Excelsior list, its attorney called the Board agent and gave him the names of a number of people who the Union believed were eligible voters. (Gathered from the Union's mem- bership records.) The Board agent then communicated with the Employer's attorney who sent a letter on 7 De- cember 1987 indicating the reasons that 27 employees were no longer employed and therefore not on the list. (Also listed was each employee's last week of work.) The Union contends that a total of about 40 people did not receive from the Board's Regional Office the notices of election. One group of 15 comprises the people it al- leges were economic strikers and they are listed above. Another group consists of 25 persons who are: Lisa Biondo Susan Loudon Duane Bowal Janet Masse Catherine Bursztin Anne Mullen Ramona Caba Ida Parenti Clare Childs Betty Pomerenk Linda Cirillo Wayne Schilling Shirley Danzker Betty Schoepp Phil Dilieto Eleanor Teague Katheryn Dorage Alice Tooker Joan Erickson Alan Volimer Kerry Ferrara Leonor Walters Diane Kromout Joyce Walz Lidia Kroushinsky As to the second group (all except for Phil Dilieto who apparently is on the Excelsior list as Mae Dilieto), the Employer asserts that all left the Company's employ either voluntarily or involuntarily before the eligibility date set forth in the election agreement (i.e., 18 Novem- ber 1987). The evidence does tend to establish that these people were not eligible to vote either because they had quit their employment or had been discharged prior to K. VAN BOURGONDIEN & SONS the eligibility date.5 None of these people came to the polls to vote. As to the first group I have concluded below that of the group of 15, 11 were eligible to vote either because they were on sick leave and/or were economic strikers. All the people in this group managed to get to the polls on time and cast challenged ballots. Therefore their non- receipt of the election notices with the sample ballots was not prejudicial. I note that the Union does not claim that the Employ- er's conduct in not putting certain names and addresses on the list constituted objectionable conduct within the meaning of the rule enunciated in Excelsior Underwear, 156 NLRB 1236 (1966). The fact is that in the present case there were at most 11 potentially eligible voters who did not receive the notice and sample ballot out of about 125 . Moreover, the Union here was the incumbent union and obviously was in contact with those employ- ees who were supporting the Union by striking. I, there- fore, recommend that this objection be overruled. B. The Challenges 1. Michael Belz, Jesse D'Bella, and James Strickland These three individuals all work basically on a regular part-time basis except for summers and vacation periods when their hours of employment are increased. They are full-time students , two of whom go to high school and one to a community college. The Stipulated Election Agreement specifically ex- cludes from the voting unit all "student employees." As the agreement is clearly unambiguous and as the stipula- tion does not, in my opinion , contravene any express statutory provision or established Board policy, I con- clude that the challenges to these votes be sustained and that their ballots remain unopened . SCM Corp., 270 NLRB 885, 886 (1984). See also NLRB v. Speedway Pe- troleum, 768 F .2d 151, 155-158 (7th Cir . 1985). 2. Carrie Lagendyk, Veronica Reilly, and Agnes Stroh All of these individuals are related to company super- visors but otherwise do the same type of work as other employees in the bargaining unit . Carrie Lagendyk is the wife of Andy Lagendyk who is the manager of the Com- pany's wholesale department . Veronica Reilly and Agnes Stroh are respectively the sister and mother of Catherine Tweedy whose title is warehouse manager and is con- cededly a supervisor. As the Stipulated Election Agreement expressly ex- cludes "relatives of management," I conclude that these challenges be sustained and that these three ballots remain unopened and uncounted. 5 I note that the Union subpoenaed the Employer 's payroll records and these were produced for the years 1986 and 1987 These records were reviewed by the Union at the hearing and were referred to at various times by the Employer's main witness while testifying Clearly, if the Union had desired to rebut the Employer's contentions regarding this group of former employees it had the records available to do so 3. Sheryl Bettinger, Beatrice Flaherty, and Mary Ellen MacKenzie 273 The Stipulated Election Agreement expressly includes in the voting unit all assistant managers . Notwithstanding the stipulation, the Union contends that Bettinger, Fla- herty and MacKenzie, each of whom is an assistant man- ager, are supervisors within the meaning of Section 2(11) of the Act. As such, the Union contends that their inclu- sion in the voting unit , in accordance with the stipula- tion, would contravene an express statutory provision Sheryl Bettinger is an assistant manager in the packag- ing department where the manager is Doris Pagnoni. Be- atrice Flaherty also is an assistant manager in the same department except that she works on the evening shift. Mary Ellen MacKenzie is the assistant manager in the wholesale department and works under the direction of Catherine Tweedy. The evidence shows that the main function of the three individuals is to distribute work to the employees in their respective departments . However, the evidence also indicates that the work distribution is routine and does not require the exercise of independent judgment. There was no evidence that any of the three individuals has the power to hire, fire, promote, or otherwise exer- cise the powers enumerated in Section 2(11) of the Act except that Flaherty has made recommendations regard- ing continued employment for students working on the second shift . Yet, even in Flaherty's case, it is my opin- ion that the evidence was insufficient to prove that she effectively recommended discharges. In my opinion the evidence presented at the hearing proved, at most, that these three individuals had the functions of leadpersons and I do not believe that the evidence was sufficient to establish that they were super- visors within the meaning of Section 2(11) of the Act. As they clearly were included in the voting unit pursuant to the parties' stipulation, I recommend that their ballots ' be opened and counted Browning-Ferris Industries, 275 NLRB 292 ( 1985); Tribune Co., 190 NLRB 398 (1971). 4. Second-shift employees A group of nine part-time employees who work on the second shift were challenged by the Union . In this re- spect, the Union contends that the people who worked on this shift have historically been excluded from the bargaining unit and have been students . While not dis- agreeing with the historical facts, the Employer contends that although the second shift had been populated by stu- dents (who are excluded from the collective -bargaining agreement), the Employer, because the student employ- ees had excessive tardiness and absenteeism , changed its policy and hired nonstudents to work on the second shift. As noted, the Stipulated Election Agreement spe- cifically provides that the eligibility of these individuals would be subject to the challenge procedure. The evidence establishes that the group of nonstudents hired for the second shift began in the autumn season of 1987 and with the exception of a few (one of whom was involved in an automobile accident), resumed work in 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD late January for the spring season .6 The work done by these employees is no different from that done by the packing employees on the day shift and they are paid es- sentially the same wage rates (depending on tenure), and receive the same level of benefits. As the evidence shows that this group of employees work on a regular part-time basis, performing the same work under the same condi- tions, as other unit employees, I conclude that they have the same community of interest as the employees in the bargaining unit. Farmers Insurance Group, 143 NLRB 240, 244-245 (1963) Since they were not excluded from the voting unit by virtue of the Stipulated Election Agreement, I recommend that their votes be opened and counted. The voters in question are: Miron Czerepski Edward Kowalewski Vincenza Durante Maria Prosa Maryla Hurkacz Feliks Romanek Stanislaw Jakubczyk Edmund Zmitrowicz Bogdan Kazio 5. Andrew Hill and Darryl Grey The record shows that Andrew Hill's last day of work at the Company was 16 November 1987. That is, he left 2 days prior to the payroll eligibility date set forth in Stipulated Election Agreement which was 18 November 1987. The Company's witness testified without contradic- tion that Hill was employed in the warehouse, that he was not laid off, and that he left and has not since re- turned to work Based on the uncontested testimony, I conclude that Hill quit his employment prior to the eligi- bility date and therefore was ineligible to vote Plymouth Towing Co., 178 NLRB 651 (1969).' Darryl Grey, who worked in the warehouse began his employment with the Company on 2 September 1987,. He had a 3 week hiatus beginning shortly before 18 No- vember 1987. This was caused by the fact that he violat- ed parole and spent the time in an involuntary visit to one of New York's institutions. On 23 December 1987 he resumed his duties and has been employed ever since. While Grey's absence from work during a part of the eli- gibility period was not because he was ill, on vacation, or temporarily laid off, it is also evident that he had not quit his employment or been discharged. In these some- 6 The Company basically has two seasons One generally begins in late January and runs through mid-May , and the other begins in mid-August and runs through mid-October Most of the Company's employees, whether on the day or evening shift, are laid off at the end of each season and are recalled for the next season 7 Par 2 of the Stipulated Election Agreement states 2 ELIGIBLE VOTERS The eligible voters shall be unit employees employed during the payroll period for eligibility, including employ- ees who did not work during that period because they were ill, on vacation, or temporarily laid off, employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements , and employees in the military services of the United States who appear in person at the polls Ineligible to vote are employees who have quit or been discharged for cause since the payroll period for eligibility, employees engaged in a strike who have been discharged for cause since the commencement thereof and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been perma- nently replaced what unusual circumstances, I conclude that Grey should be considered an eligible voter and I recommend that his ballot be opened and counted. 6. Vincenzo Furci, Ruth Schilling, Fae Ferrante, Margaret Wellbrook, Betty Matulchi, and Gaetano Parisi In Red Arrow Freight Lines, 278 NLRB 965 (1986), the Board stated: The fundamental rule governing the eligibility of an employee on sick or maternity leave is that he or she is presumed to continue in such status unless and until the presumption is rebutted by an affirma- tive showing that the employee has been discharged or has resigned. Furci last worked at the Company in August 1987 when he stopped because of a serious illness. He has not yet returned. According to John Van Bourgondien, Furci is on sick leave and would be reinstated to a job suitable to him when and if he recovers sufficiently to return work. In this respect Van Bourgondien testified that the Company has a very liberal practice of keeping jobs open for employees who are out sick. Betty Matulchi, who was employed as a packer since February 1978 last worked for the Company in Novem- ber 1985. She states that she left on bereavement leave because her mother died. Shortly thereafter, she was laid off after the fall season with other employees in her clas- sification. According to Matulchi she received a mailgram recall- ing her to work in February 1986 but told Ann Sconzo (who among other things is in charge of payroll) that her doctor told her to rest in anticipation of surgery on her wrist. Matulchi states that Sconzo asked her to send a letter explaining the situation, which she did. Matulchi testified that she had the surgery in April 1986, and after recuperating, she called the Company in January 1987 to go back to work. She states that in Janu- ary 1987 Ann Sconzo told her for the first time that her leave of absence was up and she no longer was em- ployed by the Company. Thereafter, when the Union went on strike, Matulchi joined the strike and participat- ed in the picketing. Ruth Schilling began working at the Company in 1970. Her last day at work was 26 December 1986. On 9 January 1987, just prior to returning to work, Schilling had a heart attack. While at the hospital she was visited by Fred Van Bourgondien (one of the owners), and told him, "Don't worry I'll be back." During the period of her recovery, Schilling collected disability benefits, which ran out in April 1987. When she fully recovered, the strike had already commenced and she participated in the picketing and spoke to Van Bourgondien on the picket line. Margaret Wellbrook has been employed by the Com- pany for 23 years. She last worked on 19 December 1986, at which time she told Ann Sconzo that she would be having an operation. In fact, she did have an oper- ation on 30 December 1986 and in January 1987 received disability benefits until sometime in March 1987. In April K VAN BOURGONDIEN & SONS 1987, she had recovered from the operation and instead of going back to work joined the strike and participated in the picketing. In September 1987 she stopped picket- ing because her husband became sick. Fae Ferrante began working at the Company in August 1980 as an order picker in the wholesale depart- ment. She was temporarily laid off in May 1986. In August when she received a recall notice she called Ann Sconzo and said that she could not go back to work yet because of bone spurs. She told Sconzo she would call back in a couple of weeks According to Ferrante, she then developed problems with her knee and when she went and spoke to Sconzo she was told that Andy would give her a sit down job. Ferrante states that she said in effect that there were no sit down jobs in her depart- ment, whereupon Sconzo said, "if you get better, call us up and if there is an opening we'll call you back." Ac- cording to Ferrante, when the strike began, she opted to join the strike rather than return to work. Gaetano Parisi is also called Ida Parisi. Three weeks before the strike she wrote to the Company on 10 Febru- ary 1987 saying that she was taking a leave of absence in Florida for a while on her doctor's advice because of an allergy. The record does not indicate whether she ever returned to New York, or whether she sought to return to work or joined the strike. There is also no evidence that she was discharged or resigned. Inasmuch as the testimony of John Yan Bourgondien establishes that the Company has a liberal practice vis-a- vis employees who are absent because of illness and as there is no persuasive affirmative evidence that any of the above-named employees had been discharged or had resigned, I am persuaded that they were eligible voters. In reaching this conclusion, I am mindful of evidence which in Furci's case, makes it somewhat unlikely that he will be able to return to work. In the case of Schil- ling, I note that despite her heart attack she has recov- ered and has participated in the picketing which has taken place in full view of the Company and its manage- ment. In the cases of Schilling, Ferrante, Wellbrook, and Matulchi, the evidence establishes that each was not working on the payroll eligibility date because of illness and thereafter became economic strikers who are entitled to vote under the terms of the Stipulated Election Agreement. In the case of Parisi, although the evidence concerning her situation is extremely thin, I believe that the company has not rebutted the presumption that she was on sick leave and therefore eligible to vote 7. Ann Busaca, Diane Desser, Antonio Destefano, Pat Fitzpatrick, Mellis Foisset, Lillian Kaplan, Penny Nelson, Kathy Russo, Lorraine Tramontana, and Vincent Weiss The Union contends that all of these persons were eli- gible to vote because they were economic strikers. The strike commenced on 27 February 1987 and has contin- ued to date. John Van Bourgondien testified that Diane Desser last worked during the week ending 15 October 1986 and has never returned to work He testified that Antonio Deste- fano was laid off during the week ending 11 November 275 1986 and never returned He testified that Pat Fitzpatrick last worked during the week ending 14 May 1986 and did not respond to a recall notice for that autumn. Ac- cording to Van Bourgondien, Mellis Foisset quit during the week ending 31 January 1987. With respect to the four people named above, the Union did not show that they engaged in the strike or otherwise were eligible to vote by reason of illness etc., I therefore recommend that their ballots remain unopened and uncounted. The evidence shows that Ann Busaca and Kathy Russo worked at the Company until the day before the strike and participated in the strike. The Employer having produced no evidence showing why these two in- dividuals, as economic strikers, would not be eligible to vote, I recommend that their ballots be opened and counted. The evidence also tends to show that Vincent Weiss was a striker albeit he had just returned to work the day before. Nevertheless, as the Employer advances no basis for finding him to be an ineligible voter, I rec- ommend that his ballot be opened and counted. Lorraine Tramoatana, Lillian Kaplan, and Penny Nelson8 all were economic strikers, who after the strike began, got full-time jobs elsewhere In each instance they got jobs that paid more money and had better fringe ben- efits. Nevertheless, they testified that they would return to work at the Company if pay and benefits equaled those of their other jobs. They also testified that they did not tell either their new employers or the Employer here that they considered their new jobs to be permanent. In the case of Penny Nelson, there was hearsay testimony that she told her supervisor at the Company that she did not intend to go back to work. The Board in Pacific Tile & Porcelain Co., 137 NLRB 1358 (1962), held that economic strikers are presumed to be eligible voters assuming the election is held within 12 months of the commencement of the strike. To rebut the presumption the Board held that the party challenging the voter's eligibility must affirmatively show by objec- tive evidence that an economic striker has abandoned an interest in his or her job. See also Q-T Tool Co., 199 NLRB 500 (1972). Moreover, the fact that a striker may have taken another job at higher earnings, by itself is in- sufficient to rebut the presumption that the striker is eli- gible to vote. Q-T Tool Co., supra; Akron Engraving Co., 170 NLRB 232 (1968); Pacific Tile & Porcelain Co., supra In view of the testimony of Kaplan and Tramontana and the stipulation as to the proposed testimony of Penny Nelson to the effect that they would either return to work or consider returning to work at the Employer if their wages and benefits at such time equaled their cur- rent employers, I do not believe that the Employer has rebutted the presumption that they were eligible voters I shall therefore recommend that their ballots be opened and counted. 8 It was stipulated that Penny Nelson, if called to testify, would give essentially the same testimony as Tramontana and Kaplan 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Summary of Recommendations On the foregoing, I make the following recommenda- tions:9 1. That all the Union's objections be overruled. 2. That the ballots of the, following individuals be opened and counted. Fae Ferrante Miron Czerepski Vincenza Durante Stanislaw Jakubczyk Bogdan Kazio Edward Kowalewski Maria Prosa Feliks Romaneck Edmund Zmitrowicz Darryl Grey Maryla Hurcacz Mary Ellen MacKenzie Margaret Wellbrook Betty Matulchi Gaetano Parisi Ann Busaca Kathy Russo Lorraine Tramontana Lillian Kaplan Penny Nelson Vincent Weiss Sheryl Bettinger Vincenzo Furci Beatrice Flaherty Ruth Schilling 9 Pursuant to Sec 102 69 of the Board's Rules and Regulations , and the Order directing hearing any party may, within fourteen (14) days from the date of issuance of this Report, or within such further period as the Board may allow, file with the Board in Washington , D C, an original and eight copies of Exceptions to this Report with supporting brief, if desired Immediately upon the filing of such Exceptions , the party filing the same shall serve a copy thereof together with a copy of any brief filed upon the other parties A statement of service shall be made to the Board simultaneously with the filing of Exceptions If no Exceptions are filed hereto the Board , upon the expiration of the period for filing such Exceptions, may adopt the recommendations of the Hearing Officer forthwith upon the record or may invoke any other disposition of the case 3. That the ballots of the following individuals remain unopened and uncounted: Michael Beltz Andrew Hill Jesse D'Bella Diane Desser James Strickland Antonio Destefano Carrie Lagendyk Pat Fitzpatrick Veronica Reilly Mellis Foisset Agnes Stroh