Reidbord Bros. Co.

REIDBORD BROS. CO. 127 REIDBORD BROS . Co. and PITTSBURGH DISTRICT JOINT BOARD, AMAL- GAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER. Case No. 6-RC-798. May 14,1952 Second Supplemental Decision and Direction On July 30, 1951, pursuant to the Board's Decision and Direction of Election herein, dated June 25, 1951,1 an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Sixth Region, among the employees in the appropriate unit at the Employer's Blairton, Pennsylvania, plant. Upon com- pletion of the election, a tally of ballots was duly furnished the par- ties. The tally showed that, of 62 votes cast, 26 were for, and 29 against, the Petitioner, and 7 were challenged. On August 6, 1951, the Employer filed objections to conduct affect- ing the results of the election. In accordance with the Rules and Reg- ulations of the Board, the Regional Director conducted an investiga- tion of the objections and of the challenges, which were sufficient in number to affect the results of the election. On October 11, 1951, the Regional Director issued and served upon the parties his report on objections and challenged ballots, in which he found that the ob- jections raised no substantial and material issues with respect to the election and recommended that they be overruled. He further found that the seven challenged voters were eligible to vote and recom- mended that the challenges to their ballots be overruled. The Em- ployer timely filed exceptions to the Regional Director's determina- tions with respect to the objections and to' two of the challenged bal- lots, namely those of Dorothy Wagner and Jennie Trisoline. On November 29, 1951, the Board issued a Supplemental Decision and Direction,2 in which it (1) overruled the Employer's objections to the election, and (2), in accord with the recommendation of the Regional Director, to which no exception was taken, overruled the challenges to five challenged ballots and directed that they be opened and counted. It made no disposition of the challenges to the ballots of Wagner and Trisoline, but directed that if, after the other five challenged ballots were opened and counted, it should appear that the ballots of Wagner and Trisoline could affect the results of the elec- tion, a hearing should be held to determine whether or not they were eligible to vote. Upon the opening and counting of the five ballots, it appeared that the ballots of Wagner and Trisoline might affect the results of the 1 Not reported in printed volumes of Board decisions. 97 NLRB No. 36. 99 NLRB No. 23. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election.3 Accordingly, on December 13,1951, pursuant to the Board's previous Direction, a hearing was held before Ralph E. Kennedy, hearing officer, to determine the issues as to Wagner and Trisoline. The Employer and the Petitioner appeared and participated. On February 25, 1952, the hearing officer issued his report on chal- lenged ballots, in which he recommended that the challenge to Wag- ner's ballot be overruled, and her ballot opened and counted, and that the challenge to Trisoline's ballot be sustained. The Employer filed timely exceptions, with a supporting brief, to the hearing of- ficer's report and recommendations relating to the challenged ballot of Wagner. It also requested a ruling on an objection, made at the hearing, that the Petitioner interferred with the election by transport- ing Trisoline to the polls while the election was in progress. The Petitioner filed a memorandum in opposition to the Employer's ex- ceptions. The Board has reviewed the rulings of the hearing officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the hearing officer's report, the Employer's exceptions and brief, the Petitioner's memorandum, and the entire record in the case, and hereby adopts the findings and recommendations of the hearing officer for the fol- lowing reasons : No exceptions were filed to the hearing officer's recommendation that the challenge to Trisoline's ballot be sustained. We therefore adopt that recommendation. As to the challenged ballot of Wagner, the hearing officer found substantially as follows : Wagner started to work for the Employer in January 1951 and was laid off in May 1951. Soon after she went to work for the Employer, she applied for employment at Sears, Roebuck & Company, and when she was laid off by the Employer went to work for Sears.' The Petitioner filed unfair labor practice charges against the Employer after the May 1951 layoff. On or about July 18, 1951, a settlement agreement was executed in which the Employer agreed to offer rein- statement, with back pay, to about 20 employees, including Wagner. On July 18, 1951,5 the Employer sent Wagner a letter advising her to report to work on Thursday, July 26, 1951. On July 24,1951, Murray Reidbord, the Employer's plant manager, visited Wagner at the Sears store and asked her whether she intended to return to work for the Employer. His, credited testimony is,that ' The revised tally of ballots, issued December 4. 1951, showed that, of 62 votes cast, 30 were for, and 30 were against, the Petitioner , and 2 remained challenged, 1. e., thdse of Wagner and Trisoline 4 Wagner testified that the Sears ' job offered steadier employment and higher -wages. c The hearing officer erroneously referred to this date in his report as July 19, 1951. REIDBORD BROS. CO. 129 she replied that she would not return to work for the Employer.6 However, Wagner reported to the Employer on July 26, worked all that day, and was paid by the Employer. On the 27th and 28th, she worked at Sears." On the following Monday, July 30, the day of the election, she again returned to the Employer, worked the entire day, for which she was paid, and cast a challenged ballot in the election. On Tuesday, July 31, she returned to her job at Sears and did not work for the Employer thereafter. Wagner sent the Employer a registered letter, dated July 31, 1951, advising it that: "Due to the nervous strain and the condition at the Blairton plant, I am inform- ing you that I have quit my job on Tuesday, July 31, 1951." The hearing officer concluded that, as Wagner's name was on the eligibility list, and as she had the status of an employee on the day of the election, she was entitled to vote. Accordingly, he recommended that the challenge to Wagner's ballot be overruled, and that it be opened and counted." The Employer does not seriously deny that Wagner's name was properly contained on the list of employees as of June 22, 1951, the payroll eligibility date. However, it argues that Wagner was not entitled to vote in the election conducted on July 30, principally on the grounds that she quit on July 24, thereby waiving her right to return ; that she was permitted to return only because the Employer understood that the settlement agreement so required; and that she was not a bona fide employee, having returned solely for the purpose of voting. On this record, we find these contentions to be without merit. As the Board has frequently said, the essential element in deter- mining an employee's eligibility to vote is his status on the eligibility payroll date and on the date of the election. It is without controlling significance that an individual employed on those dates may have intended to quit,' or actually did quit,10 shortly after the election. Here, Wagner, who had begun work for the Employer in January 1951, was properly included on the eligibility list and was admittedly working for the Employer on the date of the election. We find, there- 6 Wagner testified that she told Reidbord she would be back to work. The hearing o&rcer credited the testimony of Reldbord, rather than Wagner, on this conversation. ' Wagner did not notify the Employer that she would not be in to work on Friday, the 24th. The 28th was a Saturday, on which day the Employer's plant was closed. 8 In rejecting certain contentions of the Employer, the hearing officer stated that, because Wagner was permitted to work on July 26 and 30, the Employer is "estopped" to urge her ineligibility to vote While we adopt the hearing officer's findings and ulti- mate conclusions, we do not adopt his reasoning that the Employer was so "estopped " The Employer was not precluded from raising the issue of Wagner's eligibility to vote by challenge, as it did in this case See Tyre Brothers Glass & Paint Company, 88 NLRB 65. 9 Bill Heath, Ino., 89 NLRB 1555. 10 Jabez Burns & Bona, Ino., 72 NLRB 18. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore, that she was entitled to vote in the election ,11 and shall adopt the hearing officer's recommendations that the challenge to Wagner's ballot be overruled and her ballot opened and counted. As previously noted, the Employer, in its exceptions, also requested a ruling on an objection, raised for the first time at the hearing, that the Petitioner interfered with the election by transporting Trisoline to the plant on election day for the purpose of voting. This objection is untimely 12 Moreover, the conduct in question did not constitute interference with the election.13 Accordingly, the objection is over- ruled. Direction As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Reidbord Bros. Co., Blairton, Pennsylvania, it is hereby directed that the Regional Director for the Sixth Region shall, pursuant to the Rules and Regulations of the Board, within ten (10) days from the date of this Direction, open and count the challenged ballot of Dorothy Wagner, and shall thereafter prepare and cause to be served upon the parties a second supplemental tally of ballots, including therein the count of this challenged ballot. MEMBER MURnocK took no part in the consideration of the above Second Supplemental Decision and Direction. "Contrary to the implication of the Employer, the record, in our opinion, fails to establish that Wagner perpetrated any "fraud" on the Board's processes. 12 Consolidated Vultee Aircraft Corporation, 72 NLRB 407; cf. J. I. Case Company, 85 NLRB 576. 13 Hoague-Sprague Corporation, 80 NLRB 1699 ; Harry Manaster & Bro., 61 NLRB 1378. INTERNATIONAL BROADCASTING CORPORATION (KWKH) and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL. Case No. 15-CA-312. May 16, 1952 Decision and Order On August 15, 1951, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and requested oral argument. All parties participated in oral argument before the Board on April 8, 1952. The Board has reviewed the rulings of the Trial Examiner and finds 99 NLRB No. 25.