Northern Engineering Co.

In the Matter of E. C. KNUDSEN AND 11. R. -KNunsEN, Co-PARTNMRs,. 0/,B/A YNOR HERN 1ENGINEERIN,G,iCOMPkN' ,1 EMIPLOI:ER and DISTRICT 133, INTERNA,T,IONAL ASSOCIATSoN OF MACHINISTS, iPETITIONER. is e No. 18-RC-1'1.-Decided September,14, .194,8 DECISION AND ORDER On January 5, 1948, pursuant to a "Stipulation for 'Certification Upon Consent Election" an election;by'secret ballot was held in this. case under the,direction and supervision of the Regional Director for- the Eighteenth Region. At the close,of the election.a Tally of Ballots was furnished the parties. The Tally shows that of the approximately 29 eligible voters, 27 cast valid ballots, of which 10 ^ were for the Petitioner, 12 against, and 5 were challenged. The challenged ballots being sufficient in number to affect the result =of the election, the Regional Director on March 19,1948, filed a Report on Challenges in which he found in effect that there was a material issue of fact with respect to the eligibility of the challenged voters, and that this issue could best be resolved on the basi's of evidence ad- duced at a formal hearing. The Regional Director, therefore, recom- mended that such a hearing be held. No exceptions to•this Report hav- ing been filed within the time provided therefor, the Board on June 16, 11948, directed that a hearing be held in accordance with the Regional Director's recommendation. Pursuant to notice a hearing was held on July 1, 1948, at Superior, Wisconsin, before Erwin A. Peterson, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board 2 makes the following findings of fact : 1. The Employer is engaged in commerce within the meaning of 'the National Labor Relations Act. ? The name of the Employer appears as amended at the hearing. 2 Pursuant to-Section 3 (b) of the amended Act, the Board has delegated its powers in connection with this case to a three -man panel consisting of the undersigned Board Members [ Houston, Reynolds , and Gray]. 79 N. L. •R. B., No. 84. , 621' 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 3. The challenged -ballots The Employer challenged the ballots of Cliff Holmberg, Harold Marquardt, Del Larson, H. T. Behn, and Herman Burgner, alleging that they were not on the pay roll of the Employer during the pay-roll period ending November 30, 1947, and;-therefore; not eligible to, vote in the election. _ The Stipulation for Certification in this case reads, in part: The eligible voters shall be those employees included within the unit described below who appear on the employer's payroll for the period [ending November 30, 1947,] including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding any employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election. The evidence at the hearing disclosed that E. C. Knudsen and H. R. Knudsen who, as partners, constitute the Employer in this case, are also the principal officers of Knudsen Brothers Shipbuilding and Dry- (lock Company, a corporation,3 engaged in the ship repair business; and that prior, to November 24, 1947, there had been some interchange of employees between -the Employer and the Corporation, but that these transfers had in no case lasted for more than a few days ; that on November 24, 1947, the five individuals named above, who were then in the employ of the Employer, were sent by the Employer to the ship- yard of the Corporation to repair a drydock pump ; and that they con- tinued to work there for at least 5 months 4 and have not since been reemployed by the Employer. The, remaining evidence at the -hearing revolved about the following two issues : - 1. Whether the five individuals during the pay-roll period ending November 30, 1947, were in the employ of the Employer or of, the Corporation? 2. Whether before the election of January 5, 1948,: they voluntarily -quit the employ of the Employer? (1) As to the first issue, the evidence is in sharp conflict. On the one hand, the Employer showed than the names of the five individuals do not appear on the Employer's pay roll for the pay-roll period Hereinafter called the Corporation. Two of the individuals were laid off by the Corporation in April 1948, the other three were still employed by the Corporation at the time of the hearing . All five were at the time of the hearing carried on the Corporation 's seniority list, dating from November 24, 1947. NORTHERN ENGINEERING COMPANY 623 ending November 30, 1947; that their names were, in fact, on the pay roll of the Corporation for that period ; that they were paid by the Cor- poration for that period and thereafter at the higher rate prevailing in the shipyard for employees of the Corporation. The Knudsens testified, moreover, that the decision to pay. the higher rate was made on November 25, 1947, and that the five individuals were notified at that time that they could not receive the higher rate without becoming employees of the Corporation. On the other hand, it is clear that the five individuals continued to punch in and out at the Employer's plant until December 4, 1946, and it was testified by four 5 of the five individuals that the dis- cussion about an increase in their rate of pay did not take place until December 1, and no decision thereon was reached until December 3, 1947.8 (2) As to the second issue, it was agreed at the hearing that the higher rate was requested by the five individuals, and there was vir- tually no denial of the testimony of the Knudsens that at the time the change in rate was discussed they advised the five individuals that such change would involve a change in employers. This testi- mony was, in fact, corroborated at the hearing by two of the individuals. Accordingly, we find that, whether or not the five individuals were employed by the Employer during the pay-roll period ending Novem- ber 30, 1947, they voluntarily quit the Employer before the date of the election of January 5, 1948, thus rendering themselves ineligible to vote in the election under the terms of the Stipulation quoted above. We shall, therefore, sustain the challenges to their ballots. As the Petitioner has lost the election, we shall dismiss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. The other was not called to testify. - This testimony is consistent with the fact that the five were paid at the higher rate for the week ending November 30, 1947, inasmuch as the pay checks for that week were not distributed until December 5, 1947.