Vulcan Tin Can Co.

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be recommended that the Respondent cease and desist from the commission of any other unfair labor practices. Nevertheless, in order to effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and de- sist from the unfair labor practices found and from in any manner interfering with the efforts of the Union to bargain collectively with it. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Amalgamated Local No. 405, International Union, United Automobile, Air- craft & Agricultural Implement Workers of America, C. I. 0., is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. All full-time, hourly rated production and maintenance employees at the Respondent's West Hartford Plant, including timekeepers and clerks on factory department payrolls, exclusive of time-study employees, apprentices, employees in production control departments, technical and engineering employees, clerical employees on office department payrolls, medical department employees, pro- fessional employees, guards, executives, foremen, assistant foremen, supervisors, work leaders, and all other supervisory employees as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. The Union was on December 2, 1948, and at all times thereafter has been, the exclusive representative of all of the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since December 21, 1950, to bargain with the Union with respect to its Christmas bonus and by unilaterally acting on the Christmas bonus the Respondent has failed and refused to bargain col- lectively with the Union as the exclusive representative of the employees in the appropriate unit and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said acts the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] VULCAN TIN CAN COMPANY AND VULCAN STAMPING AND MANUFAC- TURING CO., INC. and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, UE, PETITIONER . Case No. 13-RC-1749. November 29, 1951 Supplemental Decision and Order Pursuant to a Decision and Direction of Election dated April 24, 1951,1 an election by secret ballot was held on May 27, 1951, under the i Vulcan Tin Can Company, 94 NLRB 10. 97 NLRB No. 32. VULCAN TIN CAN COMPANY 181 direction and supervision of the Regional Director for the Thirteenth Region, among the employees of the Employer in the unit found ap- propriate. At the close of the election the parties were furnished a tally of ballots which showed that of the 167 ballots cast, 55 were for and 68 against the Petitioner, 41 were challenged, and 3 were void. Thereafter, the Petitioner and the Employer filed timely objec- tions to conduct affecting the results of the election. Thereupon, in accordance with the Board's Rules and Regulations, the Regional Di- rector conducted an investigation: On September 25, 1951, he issued and duly served upon the parties his report on challenges and ob- jections, in which he recommended that 33 of the challenges be sus- tained, and that all the objections be overruled. He made no recom- mendation respecting the remaining challenges. Thereafter, the Petitioner filed timely exceptions to the Regional Director's report; no exceptions were received from the Employer. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. The Challenges The largest group of challenged ballots was cast by 33 employees who were laid off a few weeks before the election. The Employer, which challenged them, asserts that they were permanently dis- charged, while the Petitioner contends that they were only temporarily laid off. The Regional Director's investigation shows that in 1950, due to a shortage of steel plate, the Employer embarked upon a tin plate pail production program, producing a substitute for its regular steel prod- uct. In this substitute program it employed a peak force of 103 em- ployees from October 1950 to April 1951. In March 1951 the Employer was given sheet steel quotas, which were subsequently ex- tended through September 1951. This restoration of its regular raw material enabled it to abandon the substitute program; for this reason the tin plate pail department of the substitute program was closed on May 11, 1951. The Employer has produced no tin plate pails since that day, when it notified 33 of the persons then in the department that their employment was terminated.2 These 33 per- sons, all of whom were hired expressly for this substitute program, were challenged at the balloting. It appears that in a number of instances, the foreman, while notifying them of their termination, indicated that the layoffs were temporary, and that they would be recalled if business conditions warranted. 2 When the department was discontinued the Employer had 17,000 tin pails in storage and unsold 986209-52-vol 97-13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We do not think that the Petitioner's exceptions to the voting eligibility of the 33 laid-off employees raise a substantial issue of fact. There is no dispute that the Employer curtailed its operations and terminated its tin plate pail production. The discharge of these em- ployees is consistent with their original hiring into a substitute, and therefore temporary, program. In view of-these facts, the affidavits of certain laid-off employees that they were told by their foreman that the layoffs were temporary, or that they would be rehired if conditions justified rehiring, do not persuade us that the discharges were temporary rather than permanent. An indication to the 33 that they would have preference in rehiring does not affect the char- acter of the determination. The question is whether these employees, at the time of the election, had any reasonable expectancy of further employment with the Employer in the near future. We agree with the Regional Director that they did not .3 We find, therefore; that at the time of the election the already laid-off employees had no reasonable expectancy of reemployment. Accordingly, we sustain the challenges to these ballots 4 As we have found the 33 discharged persons ineligible to vote, the remaining challenges are insufficient to affect the result of the election. We shall therefore not pass upon the remaining challenges. The Objections The Petitioner's objections contain substantially the following allegations of improper conduct by' the Employer : (1) Improper challenges of certain ballots; (2) refusal to furnish the Board's agent with a list of all eligible voters; (3) transportation of an employee to the polls for the purpose of registering a ballot against the Peti- tioner; (4) layoff of certain employees in order to influence the results of the election; (5) a "course" of illegal conduct for the purpose of influencing the results of the election. Upon the basis of his investigation, the Regional Director reported that none of these objections raised substantial issues and he recom- mended that each objection be overruled. The Petitioner filed all- inclusive exceptions to the report, merely asserting generally that it is "contrary to the facts and law in the situation." It also charges now that the Employer committed certain unfair labor practices after the election, as part of a continuing pattern of improper conduct. Objection 1. This objection is based upon the Employer's chal- lenge of the 33 laid-off employees, discussed above, and certain other 8 The Petitioner alleged in its exceptions that some new employees , hifed after the election , are doing work formerly done by some of the 33. So far as this claim relates to Petitioner 's challenges , it merely strengthens the Regional Director 's finding that the 33 received permanent discharges, and that the Employer did not intend to rehire them 4 United States Rubber Company ( Milan Plant, Footwear Division ), 86 NLRB 338 VULCAN TIN CAN COMPANY 183 employees who were on sick leave on the day of the election but whose challenged ballots need not be considered. The Regional Director reported that there was no evidence that the Employer's use of chal- lenges interfered with the free choice of the voters in any way. As the Board's established procedures permit the raising of eligibility ques- tions by challenges at the polls, we hereby overrule this objection:' Objection 2. The Petitioner asserts that the Employer failed to provide a list of all eligible voters, and that therefore not all eligible voters had an opportunity to cast ballots. The Employer furnished a list of employees whom it deemed eligible to vote but refused to supply a list of the employees terminated on May 11, 1951. The Peti- tioner supplied 40 names of employees terminated at that time, and all received mail ballots. The Regional Director's investigation re- vealed no evidence that any eligible voters were denied voting rights as a result of the Employer's refusal to supply the names of any laid- off workers, nor does the Petitioner in its exceptions assert that any employees have been so prejudiced. While we do not condone the Employer's refusal to cooperate with the Board's field agent, we agree with the Regional Director's conclusion that the refusal in this instance did not affect the result of the election. Accordingly, we hereby overrule this objection. Objection 3. The Petitioner claims that the Employer transported an employee to the polls in order to secure his vote against the Union. The Regional Director found no evidence of any sort to support this allegation, and the Petitioner neither reasserted the allegation in its exceptions, nor specifically took issue with the Regional Director's report on the facts. Accordingly, we hereby overrule this objection. Objection 4. The Petitioner asserts that the layoffs in the tin plate pail department were made for the purpose of weakening the voting strength of the Petitioner, which was particularly strong in this de- partment. However, as stated above, there is no dispute regarding the termination of the Employer's substitute tin pail production. There is no evidence to support the Petitioner's claim that the reduc- tion in question was made otherwise than in the normal course of busi- ness. Merely because some employees were told that they might later be recalled, we will not infer, as the Petitioner apparently urges, that the layoff had a discriminatory motive. As there is no substantial affirmative evidence supporting this objection, it is hereby overruled. Objection 5. The Petitioner charged generally that the Employer improperly influenced the result of the election by a continuing "course of conduct" which began before the election. Under this objection, the Regional Director's investigation revealed only that on a single occasion, 3 months before the election, a foreman asked a steward 5 Section 102.61, National Labor Relations Board Rules and Regulations. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Petitioner whether he had seen any persons distributing union leaflets in the plant. The Regional Director recommended that this general objection be overruled, on the ground that the sole instance of improper conduct was too remote in time to have had any appreciable effect on the result of the election. In its exceptions under this objection, the Petitioner repeats its charge that the May 11 layoffs were illegal, and also apparently claims that the hiring of new employees after the election was part of a pat- tern of illegal conduct. We have already decided that there is no evi- dence indicating illegality in the May 11 layoffs. To the extent that this exception now charges illegal conduct after the election, we reject it because later conduct could not have affected the election. We also note that, although the Petitioner filed five charges against the Em- ployer after the election, nowhere did it charge that the May 11 layoffs, or the later hirings, were illegal.' - The sole incident shown under this objection, therefore, is the improper interrogation of an employee by a supervisor long before the election. We agree with the Regional Director's recommendation that this single incident does not raise a substantial issue respecting the results of the election. Accordingly, we hereby overrule the final objection. As we have overruled the Petitioner's objections, and as the tally of ballots shows that no collective bargaining representative has been chosen, we shall dismiss the petition. As set forth above, the Regional Director recommended that the Employer's objections also be overruled. Dismissal of the petition because of the Petitioner's failure to win a majority renders the Employer's objections moot; we shall therefore not pass upon them. Order IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed. O Case No. 13-CA-857, charges filed June 25, June 29 , August 23 , September 17, and September 26, 1951. WEST TEXAS UTILITIES COMPANY ' and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNIONS Nos. 898, 920, AND 1044, AFL, PETITIONER. Case No. 16-RC-81?. November 29, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Willis C. Darby, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. ' The name of the Employer appears as amended at the hearing. 97 NLRB No. 28.