Oscar H. Kjorlie Co.

I In the Matter of OSCAR H. KaoRLIE Co. and GENERAL DRIVERS, HELPERS - AND INSIDE WORKERS UNION5 LOCAL 116, A. F. L. Case No. 18-R-953 SUPPLEMENTAL DECISION AND DIRECTION July 8, 1944 On April 24, 1944, pursuant to' a Decision and Direction of Election issued by the Board herein on April -12, 1944,1 an election by secret ballot was conducted under the direction and supervision* of the .Regional Director for the Eighteenth Region (Minneapolis, Min- nesota). On April 24, 1944, the Regional Director issued and -duly served upon the parties a Tally of Ballots. As to the balloting and its results, the Regional Director reported as follows : Approximate number of eligible voters______________________ 6 Valid votes-counted-----------------------------------= --- 6 Votes cast for General Drivers, Helpers, and Inside Workers Union, Local 116, A. F. L________________________________ 3 Votes cast against aforementioned Union____________________ 3 Challenged ballots ------------------- ----------------------- 3 Void ballots ----------------------------------------------- 0 On May 4, 1944,`the Regional Director issued a Report on Chal- lenges, recommending that the challenges to the three challenged bal- lots be overruled and that they be opened and counted. On May 9, '944, the Company filed exceptions to the Report on Challenges. On May 19, 1944, the Board, having duly considered the matter, determined that the challenges raised substantial material issues with respect to the election, and issued an order directing a hearing thereon and referring the case to the Regional Director for the purpose of conducting' the hearing. Said hearing was held, at Fargo, North Dakota, on June 9, 1944, before Clarence A. Meter, Trial Examiner. The Company and the Union appeared, participated, and were af- forded full opportunity to be heard, to examine and cross-examine witnesses,, and to introduce evidence bearing on the issues. The-Trial 255 N. L. It. B. 1220. 57 N. L. It. B., No. 27. ,144 I OSCAR H. KJORLIE CO. 145 Examiner's rulings made at'the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT At the commencement of the hearing the Union withdrew its 'chal- lenge to, the ballot of Floyd Nelson. Accordingly, we shall direct that his ballot be counted. In our Direction of Election we found that all nonsiipervisory employees of the Company who were employed during the, pay-roll period immediately preceding the date of the Direction were eligible to vote, including employees who did not ' work during that pay-roll period because they were ill or on vacation or tem- porarily laid off, but excluding any employees who had quit or been discharged for cause after that date. At-the election the Company challenged the ballots of Jess Merrick and Olaf Knutson on the ground that their employment had ceased with the Company before the date of the election. The Union, contends that said employees are eligible to vote because they were merely temporarily laid off. The Company's business is seasonal in nature, and there is an annual seasonal lay-off from about April to September of each year. Merrick was first employed'by the Company in the fall of 1941 and worked until April 1942. He was recalled in the fall of 1942 and worked until the spring of 1943.' He likewise was reemployed in the fall of 1943 and worked, until April 7, 1944. Knutson commenced his employment with the Company in the fall of 1942 and after working for 2 months became a member of the armed forces of the United States. There- after, the president of the Company wrote to the United States Army requesting Knutson's release and stated therein that he would employ Knutson if he were released. On August 6, 1943, Krjutson was re- leased from the Army and 2 weeks thereafter resumed his employment with the Company. He was thereafter employed until April 6, 1944. The Company contends that Knutson and Merrick were unsatisfactory employees from the fall of 1943 until the spring of 1944, and that, when they ceased their employment in April 1944, it was the Com- pany's intention not to reemploy them upon the resumption of normal operations in the fal_1 of 1944. The Company stated in support of its contention that both employees in question had been drinking through- out the entire season and that they had not produced a sufficient quan- tity of work. It is clear from the record, however, that neither of them had ever been warned by- the Company with respect to their alleged inefficiency, nor does it appear that there was any diminution 601248-45-vol. 57-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of production by either one, nor is there any evidence of their alleged drinking during working hours. We are therefore of the opinion that Knutson and Merrick are regular seasonal employees of the Coin- pany who fall within the scope of the eligibility 'definition in our Direction of Election. The challenges to their, ballots are therefore- overruled. We shall direct that their ballots be 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, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with'Oscar H. Kjorlie Co., Fargo, North Dakota, the Regional Director for the Eighteenth Region shall, pursuant to said Rules and Regula tions, and subject to Article III, Section 10, thereof, within ten (10) days from the date of this Direction, open and count the challenged ballots of Olaf Knutson, Jess Merrick, and Floyd Nelson, herein declared valid, and shall thereafter prepare and cause to be served upon the parties to this proceeding a Supplemental Election Report embodying his findings therein and his recommendations as to the, result of the balloting. - MR. GERARD D. REILLY took no part in'the consideration of the above ' Supplemental Decision and Direction., t