Leedon Webbing Co.

IIl• the„Matter of,,JoHNA JANOWSKI AND, EDWARD JANOWSKI , CO-PART- NERS; ,p/B/A .LEEDON WEBBING COMPANY, EMPLOYER and TEXTILE WORKERS : UNION OF AMERICA, CIO, PETITIONER Case No. 1-RC-580 SECOND SUPPLEMENTAL DECISION AND DIRECTION April $8,1949 On November 23, 1948, an election by secret ballot was conducted in , the above-entitled, matter pursuant to a Decision and Direction of Election.' On January 18, 1949, the Board, in a Supplemental De- cision and Direction,2 passed upon the validity of four of the five challenged ballots, which were sufficient in number to affect the out- come come of the election. The challenge to the ballot of one employee was . . sustained, and the challenges to the ballots of three employees were overruled and their ballots ordered opened and counted. With re- spect to the fifth challenged ballot, namely, the ballot of Henry Patuchek, the Board found that the Employer's Exceptions to the Regional Director's Report on Challenged Ballots contained allega- tions which raised material issues of fact. However, because a con- clusive election may have resulted from the opening and counting of three challenged ballots which it found valid, the Board at that time deemed it unnecessary to order a hearing to resolve the issues of fact as to Patuchek. On January 27, 1949, the Regional Director caused to be opened and counted the 3 challenged ballots declared valid by the Board and furnished the parties with a Supplemental Tally of Ballots. This tally shows that there were approximately 18 eligible voters and that 18 ballots were cast, of which 9 were for the Petitioner, and 8 against the Petitioner, and the challenged ballot of Patuchek remained un- opened. Patuchek's ballot, therefore, was sufficient to affect the out- come of the election. 1 Unpublished. a N. L. It. B. 216. 83 N. L. R. B., No. 36. 273 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finding that material issues of fact had been raised with respect to Patuchek's eligibility to vote, the Board, on February 21, 1949, ordered that the Regional Director conduct a further hearing to resolve these issues. Consequently, on March 8, 1949, a further hearing was held a£ Providence, Rhode 'Island, before Sidney A. Coven, hearing off - cer of the National Labor Relations Board. The hearing officer's rulings made at this further hearing are free from prejudicial error and are hereby affirmed. The challenged ballot of Henry Patuch,ek The precise grounds for the Petitioner's challenge of Patuchek's ballot do not appear in the record. It appears, however, from the Regional Director's Report on Challenges that the Petitioner contests Patuchek's eligibility to vote on the grounds that Patuchek spends substantially all of his time in developmental work and in the erection of new machinery and, in general, that Patuchek's interests are more closely allied to those of management than to those of the other employees of the unit. The record made at the further hearing shows that Patuchek entered the employ of the Employer in July 1948 as a floorman. However, prior to this employment, from January to July 1948, Patuchek had been spending substantial periods of time performing machine work on the Employer's premises for another company. The latter company was then under contract with the Employer to machine and assemble parts for a certain plastic tape machine newly invented by one of the partners in the firm of the Employer. Although there is some conflict in the testimony, it is clear that after commencing his employment with the Employer, Patuchek spent only a very small portion of his time on the plastic tape machine, which the Employer attempted to keep secret until patented. - During the first' 4 months of his employment with the Employer, Patuchek devoted most of his time to the installation of two new looms at the plant. Three other floormen assisted in this work. After these new looms were installed,8 Patuchek undertook his regular duties as floorman. In this capacity, he spends approximately 50 percent of his time in general machine-shop work, and the balance of his time in maintaining and repairing the looms, receiving and shipping, sweep- ing the floor, cleaning the machines, and acting as general help in the plant. The plant employs a total of 18 persons, all of whom are directly supervised by Edward and John Janowski, the two partners who con- The Employer indicated that it had no further plans for the installation of additional looms. LEEDON WEBBING COMPANY 275 stitute the Employer herein. In addition to Patuchek, there are em- ployed 5 other floormen, who perform similar work. All of these other floormen cast valid ballots at the election. Patuchek appears to be the sole employee who is paid on a salary basis, i. e., $60 for a 45- hour week, and he is not required to punch a time clock. The contention that Patuchek's regular duties entail developmental and experimental work, finds no support in the record, even assuming that this fact, if established, would be a ground for excluding Patu- chek's ballot.4 There is no evidence that Patuchek has any authority over other employees which would disqualify him as a supervisor. Patuchek's access to and partial knowledge of the "secret" plastic tape machine, we find, is insufficient to render him a confidential employee.° Nor do we consider the different method of salary payment as to Patu- chek, and his failure to punch a time clock, as sufficient grounds for setting him apart from the other employees, where, as here, there is otherwise no substantial divergence in their interests.,, Upon the basis of the foregoing, we find that Patuchek, as one of the maintenance employees in the appropriate production and maintenance unit, was eligible to vote in the election of November 23, 1948. Accord- ingly, we hereby overrule the challenge to his ballot and shall direct that his ballot be opened and counted. DIRECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with John Janowski and Edward Janow- ski, d/b/a Leedon Webbing Company, Pawtucket, Rhode Island, the Regional Director for the First Region shall, pursuant to Board Rules and Regulations, within 10 days from the date of this Direction, open and count the ballot of Henry Patuchek, and thereafter prepare and cause to be served upon the parties a Further Supplemental Tally of Ballots, including therein the count of the said challenged ballot. CHAIRMAN HERZOG and MEMBER GRAY took no part in the considera- tion of the above Second Supplemental Decision and Direction. 4Cf. Matter of John Deere Dubuque Tractor Company, 72 N. L. R. B. 656. ° See, e. g., Matter of General Chemical Company, 64 N. L. R. B. 357. ° Cf. Matter of Wilson & Co., Inc., 80 N. L. R. B. 1466.