Kellburn Manufacturing Co., Inc.

In the Matter of KELLBURN MANUFACTURING COMPANY, INC. and,, HUDSON VALLEY DISTRICT , INTERNATIONAL LADIES' GARMENT WORK- ERS' UNION , A. F. OF L. Case No. R-436.5 SUPPLEMENTAL DECISION AND - DIRECTION Febv°uary 1,1943• On November 2, 1942, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election in this proceeding.' Pursuant to the Direction of Election, an election by secret ballot was conducted on November 19, 1942, under the direction and supervision of the Regional Director for the, Second Region (New York City). On December 3, 1942, the Regional Director, acting pur- suant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties his Election Report. On December 8, 1942, the Re- gional Director issued and duly served- upon the parties an amend- ment to'hjs Election Report. As to the balloting and the results the Regional Director reported as follows : Approximate number of eligible voters__________________________________ 131 Total Ballots cast------------------------ - ------------------------ -------------- ---------------- 103 Total ballots challenged________________________________________________ 40 Total void ballots---------------------------------------------------- 0 Total valid votes counted ---------------------------- ---------------------- 63 Votes cast for Hnd,^ou Valley District,, International Ladies' Garment Workers' Union. AFL---------------------------------------------=-- 35 Votes cast against Hudson Valley District, International Ladies' Garment Workers' Union, AFL------------------------------------------------ -28 On December 7, 1942, Hudson Valley District, International Ladies' Garment Workers' Union, herein called the Union, filed a "Statement" with respect to the Election Report, stating that in the event the Board followed the recommendations in the Regional Director's December 3 Report in their entirety, it would forego filing objections. It stated, 1 45 N L R B 322 47 N L,R B, No. 21. 217 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, that in the event the recommendations were not followed or if a hearing were required by reason of objections filed by any other party, it desired to submit evidence in support of its contentions that the ballots of three persons 2 be declared invalid and the ballots of six persons 3 be declared valid. 'ire have considered the "Statement" filed by the Union as objections, as did the Regional Director, and, for the reasons indicated below in connection with the treatment of the va- lidity of the ballots cast by the foregoing persons, find no merit in the objections by the Union. On December 13, 1942, Kellburn Manufacturing Company, Inc., herein called the Company, filed Objections to the Regional Director's Report and Amended Report, in v=hich the Company objected to the conduct of the election and also excepted to certain rulings with re- spect to challenged ballots. On January 4, 1943. the Regional Director issued and duly served upon the parties as "Answer to Objections," finding no merit in the objections filed by either party and reaffirming the recommendations made in his Election, Report, as amended. We shall first consider the general objections of the Company concerning the conduct of the election ; the remaining objections relate to rulings and -recommendations on challenges, and will be considered in con- nection with the discussion of the validity of the challenged ballots. 0 A. The conduct of the election The Company contends that the Board agent in charge of the elec- tion did not permit the Company's observers to challenge persons whom they wished to challenge, and that in consequence six,ineligible persons voted without challenge. It contends, therefore, that the bal- lots of these persons be declared invalid., - Prior to the election, the Company agreed to furnish the Board agent with a list of persons it desired to challenge.. On November 17, 1942, IJie Company sent the agent a letter transmitting "Challenge List and reasons for their challenge." Enclosed with the letter were five lists, xs follows: (1) "Challenge List," listing the names of persons and the place where each was alleged to be working; (2) "Employees at Kell- -burn entitled to vote"; (3) "Those who left employ prior to walk-out"; (4.) "Employees working 2 weeks-oi less"; and (5) "People who left Kellburn' employ after walk-out." On November 18, the Company, itddressed to the Board agent another letter, stating that it desired also to challenge four additional Iiamed persons. The Board agent did not receive this communication prior to leaving the Regional Office to conduct the election on November 19. 2 Betty Newkirk, Pauline Nezich, and Kenneth MacLary. The Regional Director had - recommended that the ballots of these persons be held valid and counted See infra. 3 These persons are discussed in Section B, tinfra. The Regional Director had recommended that their ballots be not counted. KELLBURN -MANUFACTURING COMPANY, INC. .219 At the election the Board agent ruled that observers, whether for the Union or for the Company, could have before them only lists of persons they intended to challenge. The agent assumed that the only persons the Company desired to challenge were those appearing on the document marked "Challenge List" which he -had received from- the Company. Since he had not received the supplemental list of four <ndditional names, he was not aware that the Company desired to chal- lei}ge the persons thereon. The Company now contends that it in- tcnded the four lists received by the agent-lists 1, 3, 4, and 5 referred to above'-as well as the additional 4 names submitted in its letter of November 18 to comprise its challenge list,, and that the agent influ- enced its observers to restrict their challenges to the persons on the "Challenge List" which he had at the election. The Regional Director found that the Company's contention that the carious lists together were intended to constitute its challenge list is not borne out by the facts. He found that if the lists had been so in- tended, it would have been unnecessary to have any name appear on more than one list, or to add thereto in its November 18 letter a name already set forth in one of the lists. He concluded that the Company, in its objections, apparently was attempting to add challenges which it had not intended to make at the election. The Regional Director found that there was no merit to the allegation that the Board agent per- suacled the Company's observers to refrain from making challenges. We are not convinced, although the question is not free from doubt, that the Company intended to confine its challenge list to the names listed on the sheet so captioned and that it is now seeking to add to the challenges. Had the "Challenge List" been intended as a complete list of challenges, it is difficult to perceive why the Company submitted lists 3, 4, and 5. The record is persuasive that the Company intended to challenge persons for 4 general reasons, more than 1 of which were deemed applicable to certain persons, thereby accounting for the dupli- cation between the lists. Thus, after the name of each of the 30 persons listed on the sheet marked "Challenge List" appears a notation indicat- ing that he was working for another concern, whereas each of the other 3'sheets purports to enumerate persons deemed ineligible because they had left-before the walk-out, had worked 2 weeks or less, or had left the Company's employ after the-walk-out. We find that the Com- pany intended all 4 lists to be treated as its challenge list. . We are satisfied, however, and find that the Board agent did not per- suade the Company's observers to refrain from challenging persons whose names did not appear upon the "Challenge List." We find that he advised the observers that they could challenge anyone they desired if they believed the voter was ineligible. That the observers for the * Observers for both parties had appeared at the polls with various lists in addition to a list of proposed challenges. - 220 DECISTONS OF' NAT'iONAL LABOR RELATIONS, BOARD Company were not influenced to restrict their challenges to persons on the "Challenge List" is apparent from the fact that they challenged four persons not on that list. Although we find no merit in the claim of the Company respecting the instructions and advice given to ob- servers by the Board agent, nevertheless, it seems clear that had the complete challenge list as intended by the Company been available to its observers at' the polls the six persons who were not challenged, but whose ballots the Company claims are invalid, would have been 'challenged.s Accordingly, we shall consider below the validity of these six ballots. B. The challonged, ballots In view of the fact that the counting of the challenged ballots was essential to determine the results of the election, the Regional Director investigated the validity of the 40 challenged ballots and reported his findings and recommendations with respect to each of them. Thirteen of these were cast by persons whose votes were ordered by the Board in its decision in this proceeding to be impounded." The Regional Director recommended that they be not opened. The validity of these 13 votes cannot be determined until the pending unfair labor practice charges have been resolved. Accordingly, these 13 ballots shall remain impounded. We shall consider the 'remaining 27 challenges ruled on by -the Regional Director, as well as the validity of the 6 ballots referred td' above. Anna Minkler was challenged by the Board agent on the -ground that her name did not appear on the eligibility list.- The Regional Director, after investigation, found that Minkler had been tempo- rarily laid off shortly before September 18, 1942, the day of the strike, and was asked to return to work by the Company on that day a few hours after the walk-out. She refused, on the ground that she wished to join the strike. We agree with the Regional Director's recom- mendation and find that Minkler'joined the strike and thus was in the category of a striking employee entitled to vote. Her ballot will therefore be counted. The Union challenged the votes of Betty Ness kirk and Pauline, Nezich; in each case on the ground that the employee had quit. New- kirk's affidavit and the Regional Director's investigation shows that she has been on sick leave since March 1942 and will return to work for the Company as soon as her, health permits. The Company listed her as an employee eligible to vote. The Regional Director recom- 5These six are' Donald Gutheil• Pueda Short. Ethel Holcomb Inez Reynolds, Martin Hull, and Joseph Hull ' The Company nukes no claim that other voters who were not chal- lenged should have been challenged The Board impounded ballots cast by persons who allegedly had been discriminatorily discharged , as well as those cast by persons hired between the date of the strike and the date on shish the strikems were refused reinstatement KELLBURN MANUFACTURING COMPANY, INC. 221 mended that she be declared eligible to vote and that her ballot be opened and counted. We affirm his recommendation. With respect to Nezich, the investigation shows that she has been on sick leave since July 7, 1942. She became well enough to return to work during' the strike but did not apply for her job on account of the strike. She states` that she will return if offered a job. The Regional Director found that she was a striking employee and since such employees were specifically declared to be eligible to vote, recommended that her ballot be opened and counted. We agree with his finding and shall direct the counting of her ballot. The Union challenged Kenneth MacLary on the ground that he was not a prochuctlon or maintenance employee find therefore not within an eligible category. MacLary was hired as a watchman by the Com- pany in August 1942; about a week before the election he was sworn in as a member- of the Auxiliary Military Police. The Regional Di- rector, in his Election Report, recommended that his ballot be de- clared valid and counted, since MacLary's job was not specifically ex- cluded from the appropriate unit.° Thereafter the Regional Director reconsidered his ruling and recommended in the amendment to his report, that, MacLary's ballot be not counted on the ground that the Board.had in another case excluded guards who were civilian mem- bers of the Auxiliary Military Police from a unit of production and maintenance employees although the only union involved had re- quested their inclusion." However, no issue was raised at the hearing as to guards and it is clear that MacLary comes within the definition of the unit found to be appropriate. His ballot will therefore be counted. Alexander Eckardt was challenged by the Union on the ground that he is not an employee of the Company, but is employed by an-• other concern. Undisputed facts show that Eckardt is regularly em- ployed, working 40 hours a week for the Atlantic Knitting Mills. It appears that Eckhardt, in addition to his regular employment, on occasion fixes machines for several customers, including the Com- pany, and is paid for the time actually spent in repairing the Com- pany's machines. The Regional Director recommended that Eckhardt be declared ineligible and that his vote should not be counted. We find that Eckardt's employment by the Company is too irregular and infrequent to entitle him to vote; accordingly, his ballot will not be counted. , The Company challenged the votes of Jennie Westergard, Robert Westergard, Peter Daley, Charles (Clarence) Meyers, Henry Daniels, We found that the aiihropriate unit consisted of "all employees of the Company , exclud- ing non-working supervisor s and office and management employees." U S Electrical Dlotors, Inc. and United Electrical, Radio R• Machine Workers of America, Local 14P.1 , C 1 0 , 45 N L R R 298 1 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and James Winters, on the ground that they had secured permanent employment elsewhere and had thus in effect quit the employ of the Company. Each,of them stated when challenged that they would not return to the Company to work. The Regional Director recom- mended that the Company's challenges be sustained and that the ballots of these six employees be not counted. We sustain his recom- mendation, since these persons.do not desire to return to work. The company challenged the votes of the following : Tony Krenn, Rudolph Legg, James Myers, Mary DeCicco, Lester Gardner, Clarence Hommel, Marge Davis, Dorothy Patterson, Ralph Hendricks, John Staerker, Collins Myer, Alice Tompkins, Paul Buntele, and Virginia Ostoyie on the ground that they had secured permanent employmept elsewhere and had thus in effect quit the employ of the Company. However, these employees cannot be considered in the same category as the six discussed above. Although some of them have admitted working elsewhere, all of them,'when challenged, stated in affidavits that they desired to return to work for the Company. All of them had gone out on strike and were subsequently refused reinstatement by the Company. The Company, in its objections, concedes that an indication of a desire to return to work normally would establish the validity of these ballots. It contends, however, that under present wartime conditions a statement by the employee that he will return is not sufficient, but that a hearing should be held to determine whether these persons in fact desire to return. We find no merit in this con- tention. The fact that these employees have stated in affidavits that they will return to their former employment is sufficient evidence that at the time of the election their status was that of striking employees. 'Accordingly eve uphold the recommendation of the Regional Director ,and shall direct that their ballots be counted. The ballots of George Tymeson and Laurence Spatz, both strikers, were challenged by the Company on the ground that each had been asked to return to work, that each had refused, and that each of them had thus quit -his employment. These employees were asked indi- vidually to return to work by the Company, after the Cbmpany had rejected an unconditional offer of all the striking employees to return to work. The Regional Director reported, as shown by the affidavits. of these two employees, that they would return to work providing the other striking employees are given the same offer by the Company. The Regional Director found that Tymeson and Spatz have not quit their employment and recommended that their ballots be opened and counted. We find that Tymeson and Spatz did not terminate their status as employees by refusing to accept the offer of employment. Their ballots will therefore be counted. Donald Gutheil, Martin Hull, and Joseph Hull are three of the six persons who voted unchallenged but whose ballots, as we have found KELLBURN MANUFACTURING COMPANY, INC. 223 above, would have been challenged had the Company's complete chal- lenge list been available to the Board agent or the Company's observ- ers - at the polls. The- Company contends that Gutheil left its employ prior to the walk-out on September 18, 1942. However, Gutheil testi- fied without contradiction at the hearing that he was employed prior to the walk-out, that he was absent on the day of the walk-out for personal reasons, that he joined the strikers, and that he desires to return to work for the Company. We find, therefore, that he was entitled to vote; accordingly, the Company's claim that his ballot should not have been counted is overruled. The Company's only contention with respect to Martin and Joseph Hull, both of whom joined the walk-out, is that their ballots should not have been counted because at the, time of the walk-out they had been employed for 10 hours and 1 week, respectively. We find no merit in this contention; there is nothing in the objections or in the record to warrant declaring employees ineligible to vote on the basis of the length of their employ- ment by the Company. We find that their ballots are valid. The Company asserts that Frieda Short, Ethel Holcomb, and Inez Reynolds-left its employ after the walk-out, and have declared that 'they quit irrespective of the strike and do not desire to return to work. Inasmuch as the Regional Director found that the Company was improperly attempting to add these persons to its challenge list, he did not investigate or report with respect to the foregoing allegations made by the Company. We have found above that'the ballots of these employees should be regarded as having been challenged. However, their ballots have been counted and commingled with the other counted ballots. It is therefore impossible to segregate them and secure a correct tabulation of the election results in the event investigation shows that their ballots should not have been counted. In these circum- stances, we shall direct the Regional Director to investigate and report as to the eligibility' of these'three persons only in the event that a counting of the other ballots (other than the impounded ballots) which we shall order counted does not result in a decisive vote.9 DIRECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby we have found that 7 challenged ballots should not be counted , that 13 should remain impounded, and that 20 should be counted The total number of eligible voters (including those whose, ballots were impounded) is thus 96 if Short, Holcomb, and Reynolds are deemed eligible, and 93 if they are deemed ineligible If the Union receives 15 or more of the ballots ordered counted , it will be unnecessary to determine the validity of the ballots of these 3 persons , since assuming their ineligibility and,that they voted for the Union, the Union will, nevertheless have received a majority (47) out of the 93 eligible votes counted. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Kellburn Manufacturing Company, Inc., Saugerties , New York, the Regional Director for the Second Region (New York City) shall, pursuant to the Rules and Regulations of the Board, set forth above, and subject to Article III, Section 10, of said Rules and Regulations, within ten ( 10) days from the date of this Direction , open and count the ballots of Anna Minkler, Betty Newkirk , Pauline Nezich , Kenneth MacLary, Tony Krenn, Rudolph Legg, James Myers; Mary DeCicco, Lester Gardner, Clarence Hommel , Marge Davis, Dorothy Patterson, Ralph Hendricks, John Staerker,_Collins Myer, Alice Tompkins, Paul Buntele, Virginia Ostoyic, George Tymeson, and Laurence Spatz, and thereafter prepare and cause to be served upon the parties in this pro- ceeding a Supplemental Election Report, embodying therein his find- ings and his, recommendations as to the results of the balloting. If a counting of the ballots of the foregoing employees does not result in a decisive vote, the Regional Director shall forthwith investigate the eligibility of Frieda Short, Ethel Holcomb, and Inez Reynolds, and include in his Supplemental Election Report his findings and recom- mendations with respect to the validity of their ballots. MR. WM. M. LEIsRasoN took no part in the consideration of the above Supplemental Decision and Direction.