Sexton Welding Co.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GEORGE SEXTON, AN INDIVIDUAL'D/B/A SEXTON WELDING COMPANY and LOCAL No. 195, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS AND HELPERS OF AMERICA, A. F. L., PETITIONER. Case No. 9-RC-1182. September 26, 1951 Supplemental Decision and Direction Pursuant to the provisions of a "Stipulation for Certification upon Consent Election," in the above-entitled matter, an election by secret ballot was conducted on May 7, 1951, under the direction and super- vision of the Regional Director for the Ninth Region. At the con- clusion of the election, the parties were furnished with a tally of ballots, which shows that of approximately 16 eligible voters, 12 cast ballots, of which 6 were for and 6 against the Petitioner, and 3 ballots were challenged. No objections to the conduct of the election were filed within the time provided therefor. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, acting pursuant to the Board's Rules and Regulations, investigated the issues raised by the challenges, and on July 6, 1951, issued his report on challenged bal- lots, recommending that the challenges to 2 ballots be sustained and that the challenge to 1 ballot be overruled and that this ballot be opened and counted. On July 11, 1951, the Employer filed excep- tions to part of the Regional Director's report. The Ballot of Edgar Crisp The Regional Director recommended that the Employer's challenge to the ballot of Edgar Crisp be sustained on the ground that Crisp had terminated his employment prior to the election. As no excep- tions to this recommendation were filed by the Petitioner, we hereby adopt the regional Director's findings and recommendation concerning this ballot. The Ballot of Henry Sexton The ballot of Henry Sexton was challenged by the Petitioner on the ground that he was a nephew of the Employer. The Employer takes the position that Sexton is not so closely related to management as to render him ineligible to vote. We do not agree.' It is well established in Board decisions that nephews of management officials are excluded from the bargaining unit.' We therefore adopt the 1 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 (Chairman Herzog and Members Reynolds and Murdock]. 2 Stanislaus Implement & Hardware Co., 92 NLRB 897. 96 NLPtB No. 61. SEXTON WELDING COMPANY 455 Regional Director's recommendation that the Petitioner's challenge to this ballot be sustained. The Ballot of Charles M. Francis The ballot of Francis was challenged by the Board agent because his name did not appear on the list of eligible voters. The Union took the position that Francis was absent because of injury. The Employer contended that Francis had been discharged immediately after his, injury, some 3 months prior to the election, and that he was not an employee. The Regional Director found that Francis had infantile paralysis at the age of 3, which caused his left leg to be one-half inch shorter than the right; that nevertheless, Francis had worked as a welder since 1940, and had worked for the Employer some 16 months prior to the injury. Francis was injured on February 5, 1951, and the records of the Employer contain a penciled notation that he would not be rehired. However, although Francis had visited the Em- ployer's office several times prior to the election, the Employer had never, informed him of his intent to discharge him.3 On the basis of these findings, the Regional Director concluded that Francis was an ,employee absent on sick leave, and was entitled to vote. The Regional Director, furthermore, found that even if the Employer had intended to discharge him, the Employer led Francis to believe otherwise. He therefore recommended that the challenge to the ballot be overruled .and that the ballot be opened and counted. In his exceptions to the report of the Regional Director, the Em- ployer contended that after his injury, Francis could have no reason- able expectation of being recalled to work, and therefore he must be considered as no longer an employee entitled to vote for a bargaining representative. On July 31, 1951, the Board, after having duly considered the mat- .ter, decided there was insufficient evidence in the record on which to base a finding that Francis had been discharged from employment and ordered a hearing for the purpose of taking evidence on this issue. Thereafter, a hearing was held before Lloyd R. Fraker, hear- ing officer, on August 21, 1951, at which the Employer, only, was present and participated. The hearing officer's rulings made at the -hearing are free from prejudicial error and are hereby affirmed. At the reopened hearing, the Employer again admitted that he had never informed Francis of his intent to discharge him. On the basis of the entire record, we find no merit in the Em- 'ployer's contentions. The record shows, and the Employer con- ' The Employer testified that such communication was withheld from Francis because this imight have interfered with the insurance benefits Francis was receiving for his injury. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceded, that the injury to Francis was not such as would prevent him from continuing to perform the same kind of tasks he had performed: prior to the injury. The question is whether this employee, at the. time of the election, had a reasonable expectation of further employ- ment with the Employer.' Upon the present record, we find that not- withstanding the fact that the Employer may have considered the advisability of discharging Francis, he at no time took any steps to. discharge him prior to the election. This conclusion is supported by the further fact that, although Francis had visited the Employer at the plant several times before the election, the Employer never ad- vised Francis that he would not be taken back to work. As Francis' employment had never been terminated, he was in effect an employee absent on sick leave, and under the established policy of the Board,, was eligible to vote: We therefore adopt the Regional Director's recommendation that the challenge to this ballot be overruled and that the ballot be opened and counted. Direction IT IS HEREBY DIRECTED that the Regional Director for the Ninth. Region shall, pursuant to the Rules and Regulations of the Board,, within ten (10) days from the date of the Direction, open and count the ballot of Charles M. Francis and thereafter prepare and serve. upon the parties to this proceeding a supplemental tally of ballots,. including therein the count of said challenged ballot. 4 Clip yard Instrument Laboratory, Inc., 86 NLRB 424; Goodyear Rubber Sundries, Inc. (Case No. 1-RC-913, supplemental decision, unpublished.) 5 Whiting Corporation, Spencer and Morris Division, 92 NLRB 1851. GRANITEVILLE COMPANY, SIBLEY DIVISION and TExTmE WORKERS: UNION OF AMERICA, CIO. Case No. 10-CA-900. September 27,. 1951 Decision and Order On April 23, 1951, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and' take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner further 'found' that the Respondent had not engaged in other alleged unfair labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the, Intermediate Report and a supporting brief. 96 NLRB No. 63.