Emsco Derrick & Equipment Co.

In the Matter of D & B DIVISION OF -EMsco DERRICK & EQUIPMENT COMPANY and UNITED STEELWORKERS OF AMERICA, DISTRICT 37 Case No. R-5596 (16-R-653) SUPPLEMENTAL DECISION AND DIRECTION October 28, 1943 On July 31, 1943, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election in the above- entitled proceeding.' Pursuant to the Direction of Election, an elec- tion by secret ballot was conducted on August 13, 1943, under the direction and supervision .of the Regional Director for the Sixteenth Region (Fort Worth, Texas). On August 16, 1943, the Regional Director, acting pursuant to Article III, Section 10, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued a Report on Ordered Election, copies of which were duly served upon the parties. As to the balloting and its results, the Regional Director reported as follows : Total on eligibility list-------------------------------------- 116 Total ballots cast________ ___________________________________ 110 Total ballots challenged_____________________________________ 4 Total blank ballots_________________________________________ 0 Total void ballots___________________________________________ - 0 Total valid votes counted____________________________________ 106 Votes cast for United Steelworkers of America, District 37 ----- 53 Votes cast against United Steelworkers of America, District 37_ 53 In view of the fact that the counting of the challenged ballots was essential for the determination of the results of the election,-the Re- gional Director investigated their validity and incorporated his find- ings and recommendations in the Report on Ordered Election. He recommended that one challenge be sustained on the ground that the employee involved was a supervisor, and that the remaining three challenges be overruled. 151 N. L. R. B. 959. 53 N. L. R. B., No. 44. 210 EMSCO 'DERRICK & EQUIPMENT COMPANY 211 On August 20, 1943, the D & B Division of Emsco Derrick & Equip- ment Company, herein called the Company, filed Objections to the Election Report, contending that the Regional Director erred in his recommendations; that the employee whose challenged ballot the Re- gional Director recommended be not opened should, in fact, be found eligible, and that two of the three challenged ballots which the Re- gional Director recommended be opened, should not, in fact, be opened. Thereafter, on August 21, 1943, the Regional Director issued and duly served upon the parties a Report on Objections to the Election Report, in which he iterated the recommendations contained in his Report on Ordered Election on the ground that the Company offered no new or additional facts which would justify its contentions. Upon the Report on Ordered Election, the Objections to the Elec- tion Report, the Report on Objections to the Election Report, and the entire record in the case, the Board makes the following supplemental findings of fact with respect to the challenged ballots : A. L. Long, was challenged at the polls on the ground that he is a supervisor. Long is classified on the Company's pay roll of July 15 as a tool grinder and in the performance of his duties as such, is set-up man for approximately 12 machines requiring 1 operator each. He is further charged with the responsibility of inspecting the toolings man- ufactured by each machine operator, and may or may not reject the finished product. He is further responsible for observing and in- structing employees in the maintenance of proper tolerances, and in case of necessity when an employee may make a run of bad toolings, Long may transfer him from one machine to another. This transfer does not affect the employee's rate of pay, hours of work, or other working conditions, but merely changes his operation. Long has the same obligations and responsibilities with regard to employees in the tool room. He does not, however, have the authority or power to hire, discharge, or recommend such action. In the absence of such authority, we disagree with the Regional Director's recommendation and agree with the contention of the Company that Long is not a supervisory employee. We shall, therefore, consider his ballot valid. Alfred Harrison was challenged at the polls on the ground that he is a supervisor. He is classified on the Company's pay roll of July 15, 1943, as a janitor, and his primary responsibility is to keep the general office clean and the front yard grass cut and watered. At times, Har- rison may work along with other janitors, but the work so done does not require any supervision by any of the employees in the group. In view of the fact that janitors were expressly included within the unit found appropriate by the Board, and in the absence of a showing of any exercise of supervisory powers by this employee, we agree with the recommendation of the Regional Director that Harrison is not a 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory employee. We shall, therefore, consider his ballot valid. Charles L. Wyatt and Ralph C. Ingram were challenged at the polls because it was questionable whether or not these persons were em- ployees eligible to vote within the meaning of the Board's Decision and Direction of Election. Both voluntarily quit their employment with the Company after the eligible pay-roll period was determined pursuant to the Board's Decision and Direction of Election, and both were rehired prior to the date of the election. The Company argues that our Direction specifically excludes from participating in an elec- tion "any who have ... quit" their employment subsequent to the date as of which eligibility to vote therein was determined, and therefore, since these employees voluntarily left the Company's employ after the date of eligibility, they should be ineligible to vote. We do not agree. The limitation in the Direction is intended to exclude only those em- ployees who, after the date of eligibility, terminate their employment and are not employed by the Company on the election date .2 The two employees involved herein, although having quit after the eligibility date, were rehired, and were concededly employees of the Company on the date of the election; thus they fulfilled the essential requirements of eligibility in that they were employed by the Company not only on the date determining eligibility, but also on the date of the election. We shall, therefore, declare their ballots valid. For reasons indicated above, we conclude and find that A. L. Long, Alfred Harrison, Charles L. Wyatt, and Ralph C. Ingram were eligible to vote in the election and their ballots are hereby declared valid. Since the results of the election may depend upon the count of four challenged ballots declared valid, we shall direct that they be opened and counted. 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, and pursuant to Article III, Section 10, of National Labor Re- lations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY DIRECTED that as part of the investigation to ascer- tain representatives for the purposes of collective bargaining with D & B Division of Emsco Derrick & Equipment Company, Dallas, Texas, the Regional Director for the Sixteenth Region shall, pursuant to the Rules and Regulations of the Board set forth above, and sub- ject to Article III, Sections 9 and 10, of said Rules and Regulations, 2 This intent is specifically manifested by the Board in its Rules and Regulations pertaining to run-off elections in which it is stated that "Employees who were eligible to vote in the election and who are employed in an eligible category on the date of the run-off election shall be eligible to vote in a run-off election ." Section 11 (b) National Labor Relations Board Rules and Regulations-Series 2; as amended. EMSCO DERRICK & EQUIPMENT COMPANY 213 within ten (10) days from the date of this Direction, open and count the ballots of A. L. Long, Alfred Harrison, Charles L. Wyatt, and Ralph C. Ingram, and thereafter prepare and cause to be served upon the parties in this proceeding a Supplemental Election Report, em- bodying therein his findings and his recommendations as to the results of the balloting. Ma. GEPARW D. REUa.Y took no part in, the consideration of the above Supplemental Decision and Direction.