Warner Brothers Co.

In the Matter Of WARNER BROTHERS COMPANY, EMPLOYER and TE%- TILE WORKERS UNION OF AMERICA, PETITIONER Case No. 1-RC-73f2 SUPPLEMENTAL DECISION AND ORDER April 26, 1949 Pursuant to a Decision and Direction of Election issued by the Board on December 31, 1948, in the above-entitled matter, an election by secret ballot was held on January 19, 1949, under the direction and supervision of the Regional Director for the First Region among the employees of the Employer in the unit found appropriate. Upon the conclusion of the election, a Tally of Ballots was fur- nished the parties in accordance with the Rules and Regulations of the Board. The Tally shows that 54 ballots were cast, of which 11 were for the Petitioner, 13 were against the Petitioner, and 30 were challenged. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director conducted an investi- gation and, thereafter, on March 18, 1949, issued and served upon the parties a Report on Challenges in which he recommended that the 30 challenges made by the Board agent be sustained. The Regional Director found that the Employer, which has been gradually liquidating his plant, had reduced the work force from over 200 production employees in April 1948 to 68 production em- ployees by December 1, 1948. Twenty-eight of the challenged voters were laid off during December 1948, and 2 were laid off prior to the hearing of November 19, 1948. The Employer considered these lay- offs permanent and made no promises concerning possible recall to work. There was no collective bargaining agreement providing for recall under a seniority clause. Participation in the Employer's group life insurance and hospitalization plan was terminated for these employees as of their lay-off dates. Separation slips showing that the cause of the lay-off was lack of work were given to each of 83 N. L. R. B., No. 24. 191 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the laid-off employees in order to make them eligible for State un- employment benefits. Six other employees, who were also laid off during December 1948, were recalled to work prior to the election and were permitted to vote. The Regional Director is of the opinion that the recall of these 6 employees is not evidence that the Employer did not intend to make the other 30 lay-offs permanent. The Regional Director further states that the Petitioner was unable to furnish evidence regarding its allegations that the Employer has renewed a lease on its plant at Pawcatuck, Connecticut, which is to run until November 1, 1950, and that the Employer has in storage new equipment for installation at this plant. Exceptions to the Report were filed by the Petitioner. The Peti- tioner points out that all 36 employees were laid off for the same reason, namely, lack of work. From the fact that 6 of these em- ployees were recalled, it concludes that the other 30 employees whose ballots were challenged must also have been temporarily laid off. We agree with the Regional Director, that the recall of one group of employees does not necessarily alter the original intent of the Employer as to permanency of the lay-off of the remaining employees. The Petitioner repeats, without any offer of evidence, its assertions concerning the Employer's renewal of its lease and storage of new machinery for installation at the Pawcatuck plant. It also declares its belief that curtailed production at the Employer's plant is caused by large inventories. This statement confirms the Regional Direc- tor's findings as to a downward trend in employment. However, even if there is some likelihood that they may be rehired if 'full operations are resumed, the uncontroverted fact is that the 30 challenged voters have been definitively separated from the Company's employ.2 'Both the testimony at the hearing and the Regional Director's Report reveal the Employer's policy of steady liquidation and reduc- tion in personnel. From the Report it is also clear that there is no reasonable expectancy of reemployment of the 30 laid-off employees whom the Employer considers permanently severed from its force.8 The exceptions do not effectively raise substantial and material issues with respect to the Regional Director's disposition of the chal- lenged ballots and, therefore, we are adopting the recommendation of the Regional Director. Accordingly, we find that the 30 em- 3 Cross Paper Products Corporation, 77 N. L. R. B. 149 ; Wells Furniture Manufacturing Company, 71 N. L. R. B. 1469. 2 American Sheet Metal Works, 69 N. L. R. B. 467. 8Waterman Steamship Corporation, Repair Division , 78 N. L. R. B. 20; Cross Paper Products Corporation, Supra; Wells Furniture Manufacturing Company, supra. WARNER BROTHERS COMPANY 193 ployees whose votes were challenged are not eligible to vote. We shall, therefore, sustain the challenges to their ballots. As the Peti- tioner has lost the election, we shall dismiss the petition for investi- gation and certification of representatives. ORDER IT IS HEREBY ORDERED that the petition for investigation and certifi- cation of representatives of employees filed by the Petitioner herein be, and it hereby is, dismissed. CHAIRMAN HERZOG and MEMBER GRAY took no part in the considera- tion of the above Supplemental Decision and Order.