F. C. Mason Co.

Iii the Matter of F. C. MASON COMPANY, EMPLOYER and INT'L UNION, UNITED AUTOMOBILE , AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS or AM ERICA, UAW-CIO, PETITIONER Case No. 7-RC-488.-Decided September 01,19/x,9 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Francis E. Burger, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All employees of the Employer, excluding office and clerical employees, salesmen, guards,' executives, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. On March 1, 1949, after the filing of the petition herein, but before the hearing, the Employer laid off 13 employees. The Peti- tioner contends that these employees were only temporarily laid off, i The Employer employs a watchman who makes rounds and guards the plant at night. He also cleans the furnaces , brings in coke for the next day's supply, and lights the fires before he goes off duty. The Petitioner seeks to include this watchman in the unit, while the Employer would exclude him. The record indicates that this employee works 63 hours per week , of which approximately 20 hours per week is spent tending to furnaces. As the majority of his time is devoted to watching duties , we find that he is a "guard " within the meaning of the Act. Consequently , we shall exclude the watchman from the unit. Com- pare Matter of Radio Corporation, of America (R. C. A. Victor Division ), 76 N. L, R. B. 826. 86 N. L. R. B., No. 16. 71 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and should be entitled to vote in the election? This contention is resisted by the Employer. In the fall of 1948, the Employer's business commenced to decline, and cancellations of orders started coming in. The situation was complicated by the scarcity of steel. According to the testimony of C. M. Valentine's the lay-off of March 1 was necessitated by the falling off of business .4 Each laid-off employee was given a slip which stated : It is with much regret that on account of the present economic conditions and the cancellation of many orders, it necessitates that you be laid off indefinitely. This action is further brought about by the smallness of the quantity of items on our dealer orders, as well as those of our Jobber and Manufacturer requirements. Two or three weeks before the hearing, the Employer's plant went on a 3-day week. It does not appear that the Employer has hired any new employees since the lay-off, nor have any of the laid-off employees been given definite assurance that they would be rehired in the near future. None of the cancelled orders has been renewed. There is little like- lihood of an early improvement in the Employer's economic position, and the laid-off employees were informed that the Employer's officials did not know when its business was going to recover, and that it looked like a very long time. Moreover, Valentine testified that, if and when operations expanded, the Employer does not intend to recall the laid-off employees, but if they apply for work, they will then be treated as new employees.-' In view of these facts, we conclude that the employees in question have been permanently laid off, and that there is no reasonable expectancy of their reemployment. Accord- ingly, we find them ineligible to participate in the election herein- after directed,6 except as provided below.. R One of the laid-off employees has died since the lay-off, and another is physically unable to return to work because of illness. 3 Apparently Valentine Is the Employer 's vice president and general manager. 4 The steel shortage had commenced to ease at that time , and was no longer a problem at the date of the hearing. 6 One of the Petitioner's witnesses testified that Valentine stated that it might be possible to call the laid-off employees back if work picked up . Another witness quoted Valentine as saying that be would hire every man back as soon as there was work for them to do ; that if the time came when they were needed, he would be glad to hire them. We are of the opinion that such indefinite commitments are insufficient to assure the employees a reasonable likelihood of reemployment. 0 Matter of Martin J. Barry Inc., 83 N. L. R. B. 1146. F. C. MASON COMPANY 73 We note that a charge has been filed 7 alleging that the Employer discriminatorily discharged five of the employees mentioned above.8 In accordance with our usual practice while such charges are pending, we shall direct the Regional Director to challenge and segregate the ballot of each of these five individuals. Their ballots will not be counted unless determinative of the results of the election. In the latter event, the final disposition of this case will await the outcome of the unfair labor practice proceedings, which are still under consid- eration by the Regional Director.° By allowing these persons to vote under challenge, we are not to be taken as having passed in any way upon the legality or illegality of their discharges. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ,ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargain- ing, by Int'l Union, United Automobile, Aircraft, and Agricultural Implement Workers of America, UAW-CIO. ' Matter of F. C. Mason Company, Case No. 7-CA-232, filed March 9, 1949 . The Peti- tioner has filed the usual waiver, stating that it would not base objections to the conduct of the election on any activities of the Employer alleged-in the.charges,as violations of the Act. ° Walter R. Markham, Robert L. Smith, Ralph F. Thomas, Paul Barnes, and Cleveland Decker. ° Matter of David Katz and Fannie Katz, d/b/a Katz Food Products . Company, 76 N. L. it. B . 312; Matter of The Nashville Corporation, 77 N. L. it. B. 145 ; and Matter of Stokely Foods, Inc., 78 N. L. it. B. 842.