Belmont Radio Corp.

In the Matter of BELMONT RADIO CORPORATION, EMPLOYER and LOCAL 1031, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., PETITIONER Case No. 13-RC-118 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES April 21, 1949 On January 21, 1949, pursuant to a Decision and Direction of Elec- tion 1 issued by the Board herein, an election by secret ballot was con- ducted under the direction and supervision of the Regional Director for the Thirteenth Region (Chicago, Illinois), among the employees of the Employer in the unit found appropriate. Upon the conclusion of the election, a Tally of Ballots was furnished the parties in accord- ance with the Rules and Regulations of the Board. The Tally of Ballots shows that of approximately 781 eligible voters, 605 cast bal- lots, of which 8 were void, 229 were for the IBEW, 95 for the Inde- pendent, 49 for neither, and 224 were challenged. On January 26, 1949, as supplemented on January 28, 1949, the Independent filed objections to the conduct of the election, alleging that the Employer had engaged in certain conduct which affected the results of the election. On February 21, 1949, the Board, acting upon the motion there- tofore filed by David B. Rothstein, attorney for certain striking em- ployees who cast challenged ballots in the election, herein called the Intervenors, permitted the Intervenors through their attorney to intervene herein but limited such intervention to matters directly con- cerned with the disposition of their challenged ballots. On February 25, 1949, the Regional Director, having investigated the objections of the Independent and the validity of the challenged ballots, issued and duly served on the parties his Report on Objections 1 81 N. L. R. B. 23. 83 N. L. R. B., No. 5. 45 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Challenged Ballots. With respect to the objections of the In- dependent, the Regional Director found that the Employer was not guilty of acts affecting the election results. As to the 226 2 challenged ballots, the Regional Director found that they were all cast by voters whose names were not on the Employer's list of eligible voters and that all the challenges were made by the Board agent. As to the eligibility to vote of the individuals who cast challenged ballots, the Regional Director found as follows: (1) Darlene Bailey, Hazel Gullett, Cora Small, and Victor Vacsvilas were eligible voters whose names were inadvertently omitted from the eligibility list, (2) Alexander Presley was not employed on the eligibility date and therefore was ineligible to vote, and (3) the ballots of the 221 voters whose names are listed on Appendix A attached hereto were invalid because they were cast by economic strikers whose jobs had been permanently filled prior to the election eligibility date and who therefore were not entitled to reinstatement. On the basis of these findings,-the Regional Director recommended that the objections of the Independent be overruled, that the challenges to the ballots of Bailey, Gullet, Small, and Vacsvilas be overruled, and that the challenges to the ballots of Presley and the 221 strikers be sustained. On March 9,1949, the Intervenors filed Exceptions to the Report on Challenged Ballots excepting only to the Regional Director's findings 'with respect to the challenged ballots cast by the "221 striking employ- ees.3 None of the parties has excepted to the other findings and recom- mendations of the Regional Director. - Accordingly, we hereby adopt the Regional Director's recommendations regarding the objections of the Independent and overrule them. We also hereby adopt his recom- mendations regarding the disposition of the ballots of Bailey, Gullett, Small, Vacsvilas, and Presley, and overrule the challenges to the bal- lots of Bailey, Gullett, Small, and Vacsvilas, and sustain the challenge to the ballot of Presley. The challenged ballots cast by the 221 striking employees listed in Appendix A. The Regional Director's investigation discloses the following undisputed facts with respect to the strike which occurred at the Employer's plant : z The Regional Director's Report discloses that there were in fact 226 challenged ballots and not 224 as is indicated in the Tally of Ballots. J In a telegram to the Board , the Employer contended that the Intervenors had no standing to file exceptions in this case because they are not parties to the proceeding. The Intervenors acquired the status of parties when the Board in its discretion permitted them to intervene herein, albeit their intervention was limited to matters dealing with the disposition of their challenged ballots. As to these matters, therefore , they are entitled to file exceptions . Since these exceptions are directed to the Regional Director's Endings which deal with the challenged ballots, we shall entertain them. BELMONT RADIO CORPORATION 47 Since 1940, the Employer's employees were represented by the UE in their dealings with the Employer. On July 16, 1948, a strike was called as a result of a dispute between the Employer and the UE over the terms of a new contract. The strike is still in effect. Although operations at the plant ceased when the strike got under way, they were resumed on August 16, 1948. On August 6, 16, and September 3, 1948, respectively, the Employer sent letters to all the strikers in- viting them to return to work. There were 466 employees in the appropriate unit when the strike began and more than one-half of 'these employees accepted the Employer's offer and were reinstated before the election. After the plant reopened, the Employer' com- menced to recruit new workers to replace the employees who remained on strike. The replacements were all advised, through 'newspaper advertisements, at hiring interviews, and at 2 plant meetings, that their jobs were permanent. The Employer carefully screened all applicants for jobs of a skilled and semi-skilled nature before hiring them and it undertook to train some of those who did not have the necessary qualifications. The replacements all live within the customary re- cruitment area of the Employer and many of them were brought to the plant by other employees. By December 13, 1948, the Employer had replaced all strikers and whatever hiring was done after that date was due to normal turn-over. Of the 221 strikers whose names are listed in Appendix A, only 7 applied for reinstatement. Their applications were all made after December 13, 1948. Of the 7, 5 were refused reinstatement and 2 were hired after January 1, the election eligibility date. On the basis of these facts, the Regional Director concluded that as of the eligibility date none of the 221 strikers whose names appear on Appendix A were eligible voters because they were not entitled to rein- statement. This conclusion is based on the finding that these strikers were permanently replaced by December 13, 1948. In their exceptions, the Intervenors contend that the replacements do not constitute a stable working force of permanent employees. The Regional Director's Report discloses that on December 13, 1948, there were 760 employees in the bargaining unit, and that this number de- clined to 619 on the day of the election, and to 429 on February 21, 1949. When the strike occurred at the Employer's plant there were 466 employees in the bargaining unit. It further appears that since the summer of 1948, there has been a reduction in the demand for the Employer's products and that other members in the Employer's in- dustry are also feeling this decline. The Regional Director concluded, after investigating the Employer's business that there was a degree of stability in the number of employees on the Employer's pay roll. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In their exceptions, the Intervenors also refer to various affidavits and documentary evidence submitted by them to the Regional Director which allegedly establish that the strikers are still employees of the Employer within the meaning of the Act. In his Report, the Regional Director noted this evidence but rejected it upon the ground that the question of whether the strikers are eligible voters does not turn upon whether or not they are employees within the meaning of the Act, but rather upon whether they are entitled to reinstatement. We are of the opinion that the Regional Director's findings and con- clusions with respect to the voting eligibility of the strikers are proper. The strike here involved is an economic one and while it was in effect, all the strikers' positions were permanently filled by December 13, 1948. Therefore, under well-established precedent,4 none of the strikers was entitled to reinstatement after that date. _ As Section 9 (c) (3) of the Act, as amended, specifically provides that "Employees on strike who are not entitled to reinstatement shall not be eligible to vote," it follows that the 221 strikers are not eligible voters.5 We shall, therefore, adopt the Regional Director's recommendations regarding the disposition the challenges to the ballots cast by the strikers whose names appear in Appendix A and sustain the challenges to their ballots. Since the challenged ballots of the four employees whom we have found to be eligible voters do not affect the election results, we shall not order that they be opened and counted. In view of the foregoing and as the Tally shows that a majority of ballots cast were for the Petitioner, we shall certify it as the collective bargaining representative of employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT Is HEREBY CERTIFIED that Local 1031, International Brother- hood of Electrical Workers has been designated and selected by a majority of the employees of Belmont Radio Corporation, Chicago, Illinois, in the unit heretofore found by the Board to be appropriate as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN HERZOG and MEMBER GRAY took no part in the considera- tion of the above Supplemental Decision and Certification of Repre- sentatives. 4 N. L. R B. v. Mackay Radio and Telegraph Company, 304 U. S. 333. " Matter of Pipe Machinery Company, 79 N. L. R. B. 1322.