Baird-Ward Printing Co., Inc.

BAIRD- WARD PRINTING CO., INC. 815 On June 12 the Petitioner filed timely objections to conduct allegedly affecting the results of the election. On July 27 after investigation of the objections and the challenges made at the election, the Regional Director issued his report and recom- mendations on objections and challenges. In this report, to which no exceptions have been filed, the Regional Director referred to this Board for ruling the objections based on conduct which was alleged as unfair labor practices in the complaint pending against the Employer, and recommended that the other objections be overruled and that 10 of the challenges be sustained. As the remaining challenges were not sufficient to affect the results of the election, the Regional Director made no recommendations concerning them. On this day, the Board has issued its Decision and Order in the complaint case, Barby's Frosted Foods, Inc., 108 NLRB 797, in which the Employer was found to have committed certain 8 (a) (1) and (3) violations based, in part, on conduct which was also the subject matter of the objections referred to the Board. However, as more than a year will have elapsed from the time of the election to the end of the period required for posting of the notices by the Employer respecting the unfair labor practices found,' we find that in the circumstances of this case, no useful purpose will be served in making findings with respect to the Petitioner's objections. Accordingly, we shall dismiss the petition without prejudice to the timely filing of a new petition. ORDER IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed without prejudice. Member Rodgers took no part in the consideration of the above Supplemental Decision and Order. 2Cf. Mike Persia Chevrolet Co., Inc., 107 NLRB 377. BAIRD-WARD PRINTING CO., INC. and NASHVILLE PRINT- ING PRESSMEN AND ASSISTANTS' UNION #37, Petitioner. Case No. 10-RC-2233. May 7, 1954 DECISION AND CERTIFICATION OF RESULTS OF ELECTION On March 10, 1953, pursuant to a stipulation for certification upon consent election, an election by secret ballot was held under the direction and supervision of the Regional Director for the Tenth Region among employees in the stipulated unit. Following the election, a tally of ballots was furnished the 108 NLRB No. 114. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parites. The tally shows that of approximately 76 eligible voters, 75 cast ballots, of which 37 were for the Petitioner, 37 were against the Petitioner, and 1 was challenged. On March 16, 1953, the Petitioner filed timely objections to conduct affecting the results of the election. Thereafter, the Regional Director investigated the issues raised by the challenged ballot and objections, and on March 27, 1953, and April 29, 1953, respectively, issued and duly served upon the parties his report on the challenged ballot and report on objections. In these reports, the Regional Director recommended that the challenge to the ballot be over- ruled, and further that, unless as a result of counting such ballot it became unnecessary, the Board set the election aside and direct a new election. The Employer filed timely exceptions to the Regional Director's reports. On May 20, 1953, the Board ordered that a hearing be held on the issues raised by the Employer's exceptions and that the hearing officer prepare and cause to be served upon the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations as to the disposition of said issues. On June 15 and 16, pursuant to notice to the parties, a hear- ing was held before Benjamin E. Cook, hearing officer, who on September 21, 1953, issued his report, recommending that the challenged ballot be opened and counted and that, if neces- sary, the election be set aside and a new one directed because of the Employer's interferexce. The Employer filed timelyex- ceptions to the hearing officer's report and a supporting brief. The Petitioner also filed a brief. The Board has reviewed the rulings of the hearing officer and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board, having considered the hearing officer's report, the exceptions and briefs, and the entire record in this case, makes the following findings: Challenged ballot The record shows, and the hearing officer found, that shortly before the Employer and the Petitioner agreed to a consent election among the pressroom employees, Goosetree was transferred from the shipping department to the press- room, and his classification was changed from that of a "permanent" to an "extra" or "temporary" employee. i At the preelection conference, the parties agreed that only "permanent" employees should be eligible to vote, and, ac- cordingly, the names of six employees classified by the Employer as "temporary" or "extras" were struck from the eligibility list. The parties further agreed that the resulting iThe record indicates that the parties used the terms "temporary" and "extra" inter- changeably in contradistinction to permanent employees. BAIRD-WARD PRINTING CO., INC. 817 eligibility list was to be considered tentative and therefore subject to correction up to a half-hour before the opening of the polls . Following the preelection conference, the Employer rechecked the eligibility list with the pressroom foreman, and, having discovered that Goosetree was classified as a "tem- porary" employee , sought, shortly before the election , to have Goosetree ' s name struck from the eligibility list . The election officer refused to permit this ; and Goosetree voted subject to the Employer ' s challenge. The hearing officer recommended that the challenge to Goosetree ' s ballot be overruled on the ground that, regardless of his temporary classification under the Employer ' s system, Goosetree had, under applicable Board standards , a sufficient interest in the outcome of the election to be entitled to vote. Thus, the hearing officer would have us substitute the Board's definition of "temporary " employee for that of the Employer, even though the parties had agreed to adopt the latter definition. That the parties agreed to exclude temporary employees as defined or classified by the Employer is reasonably clear from the record. There is no doubt that at the preelection con- ference the parties agreed that all employees included within the classification of "extra" or "temporary " should not be eligible to vote . It is also undisputed that the Employer had a specific and distinct category of employees designated as "extra" or "temporary." The record shows that employees were hired by the Employer either on a temporary or a permanent basis. A temporary employee acquired permanent status only in the event of a permanent opening and after a fixed personnel procedure . Also, under the Employer's system, when an em- ployee transferred from one department to another , the em- ployee was first "terminated " and then "rehired" in the new department. This procedure was followed both as to temporary employees and permanent employees , and explains why Goose- tree , after being transferred to the pressroom was reclassified from "permanent " to "extra" status . It is further evident that in setting up the eligibility list the parties adhered to the Employer ' s classification of "permanent " and "temporary" employees . At the preelection conference , the Employer in response to the request of the Board ' s representative furnished a payroll list of pressroom employees to be used as an eligi- bility list . The "temporary " employees were grouped sepa- rately on the list, and after each name was inserted the word "extra." The other employees , including Goosetree, were grouped on the list according to the department in which they worked. Being based upon the Employer's records , it is to be presumed , in the absence of any evidence to the contrary, that the employees were listed under the Employer ' s system of classification. As previously noted , the parties struck from the list all six employees marked " extra," and agreed, sub- ject to later correction , that the other employees were ap- parently eligible to vote. So far as the record discloses, the 339676 0 - 55 - 53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties did so without any reference to or discussion of whether the employees, included or excluded from the list, were eligible to vote under the Board's standards. Rather the record plainly indicates that the parties' discussion of eligibility was within the framework of the Employer's system of classification . In this connection , it is significant to note that the Petitioner does not contend that anything but the Employer's classifications were used. In view of the foregoing, we believe, contrary to our dissenting colleague , 2 that the parties intended to and did use the Employer's system of classification in determining eligibility. We also believe that the agreement of the parties making tem- porary employees ineligible to vote should be honored in toto. It would be manifestly unfair to the parties and to the employees themselves to permit Goosetree to vote because he might have been eligible under the Board's standards , after six employees who might likewise have been eligible under those standards were struck from the eligibility list. Therefore, we find, in accord with the parties' agreement, that Goosetree was a temporary employee, ineligible to vote in the election. Ac- cordingly, the callenge to his ballot is sustained. Objections The hearing officer found that the Employer interfered with the election conducted on March 10, 1953, by granting a retroactive wage increase on February 27, 1953, and addi- tional vacation benefits on March 6, 1953. The record shows that for over 10 years ithas been the Employer's practice to ad- just wages for all of its employees during January and July of each year. On January 23, 1953, the Employer in a letter to all employees announced that (1) its customary January wage adjustment could not be made that year until February or later (i. e., until after the new prevailing rates in the area 2 Unlike our dissenting colleague, we attach no significance to the listing of Goosetree's name on the payroll list free of special designation, or his uninterrupted employment of 7 months before the election, or the Employer's failure to come forth at the preelection con- ference with any assertion that Goosetree should be ineligible. The record shows that the Employer has approximately 300 employees of whom 80 work in the pressroom, that the Employer's representative at the preelection conference admittedly did not know the employ- ment status of all the pressroom employees and that because of the likelihood of error, the eligibility list was to be considered tentativeandthe parties were given the right to revise the list up to a half-hour before the election. Thus, there is an adequate explanation for the Employer's failure to designate Goosetree on the payroll list as an "extra" or to challenge his eligibility at the preelection conference. As preciously noted, the Employer challenged Goosetree's eligibility at the first opportunity thereafter. Moreover, the record indicates that under the Employer's system of classification length of service did not determine an employee's status. A temporary employee could acquire permanent status only in the event of a permanent opening in the department for which he was hired or, as in Goosetree's case, to which he transferred. In this connection, it is to be noted that 3 of the "extra" employees struck from the payroll list as ineligible were employed in the pressroom before Goosetree transferred there in January 1953. BAIRD-WARD PRINTING CO., INC. 819 became known ), at which time such wage adjustment would be made retroactive from January 22, 1953; and (2) vacations would be increased from 1 to 2 weeks, in line with the recently ascertained pattern in the area, as soon as the WSB approved the Employer's pending application. Subsequently, on February 11, following the Petitioner's claim for recognition of the pressroom employees, the Employer entered into a stipulation for certification upon consent election for such employees. In the meantime, the Employer, having determined the prevail- ing wage pattern and having received WSB approval of its vacation plan, commenced the administrative work necessary to effectuate the previously announced wage and vacation adjustments. Thereafter, pursuant to its earlier announcement to all employees, the Employer, on February 27, put into effect the retroactive wage increase and on March 6 announced the liberalized vacation plan, effective March 1. These benefits were granted to all 300 employees including the approximately 80 pressroom employees. Under all the circumstances, and particularly in view of the past practice of the Employer and the fact that the benefits were granted to all the employees andwere not limited to those employees in the unit, we find, contrary to the hearing officer, that the granting on February 27 and March 6, 1953, of the previously announced benefits, did not constitute interference with the election. Accordingly, the Petitioner's objections are overruled.' As the Petitioner has failed to receive a majority of the valid ballots cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for the Petitioner, Nashville Printing Pressmen and Assistants Union #37, and that the Petitioner is not the exclusive representative of the employees at the Employer's Nashville, Tennessee, plant, in the unit set forth] Chairman Farmer, dissenting: I disagree with the majority conclusion that the Employer's challenge to the ballot of Goosetree, whose vote may determine the outcome of the election, should be sustained. Instead, as the hearing officer recommended, I would open and count Goosetree's ballot, and defer consiceration of the Petitioner's objections to the election pending a revised tally of ballots. The facts upon which Goosetree's eligibility turn are as follows: On February 11, 1953, the parties executed the usual stipulation for certification upon consent election, a formal document which defined the unit and set out the Board's usual eligibility formula. This agreement did not define, and, indeed, did not even mention, temporary employees. At the same 3 As the Petitioner failed to file exceptions to the Regional Director's recommendations overuling its other objections, we have adopted them. 8 ZO DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, the. Employer furnished a payroll list which set out 76 names, including that of Goosetree, under 4 separate de- partments , and, in separate arrangement , also listed the names of 6 other persons marked "extra ." Intending to use this list, albeit tentatively, as the eventual eligibility list, the parties agreed to and did strike the names of the 6 employees marked "extra." Goosetree's name was left on the list of eligible voters. Shortly before the election the Employer asked that Goosetree also be struck from this list on the ground that he was a temporary employee, and therefore ineligible to vote. The election officer refused to permit this, but did permit the Employer to challenge Goosetree's ballot. The majority opinion does not take issue with the hearing officer's finding that, under established Board policy, Goose- tree had a sufficient interest in the outcome of the election to be entitled to vote. That is to say, whatever may have been the Employer's concept of eligibility, Goosetree's employment sta- tus was such as to clearly qualify him as a voter in the election4 unless it cound be shown that the parties had agreed that he should be ineligible. The Employer contests Goosetree's righttovote onthe ground that the Petitioner had agreed, as part of the stipulation for a consent election , that Goosetree should be ineligible . This is on the hypothesis that the parties orally agreed to exclude temporary employees as defined by the Employer, and that Goosetree was a temporary employee at the time of the election. This contention, it is to be noted necessarily rests on the assumption that the parties agreed not only to exclude tem- porary employees, but also that the parties agreed to adopt the Employer's own peculiar definition of "temporary," even though it is in conflict with the definition normally followed by this Board. I see no basis in the record for such a finding. There is no doubt that the question of eligibility was dis- cussed at the February 11 conference and that it was agreed that some ill-defined group of employees in the general category of extra or temporary should not be eligible to vote. To find that the agreement extended to Goosetree, however, re- quires an unwarranted straining of the record. Thus Baird, the only witness who made any reference to the alleged agree- ment, did so only indirectly while explaining the deletion of the 6 names from the eligibility list offered by the Company. At 1 point he said that the 6 names were struck "because they were known extras, or temporary employees . . . " and, "it 4Goosetree's employment record shows: August 15, 1952: Hired as a temporary employee in the maintenance department. September 2, 1952: "Terminated" in the maintenance department and "rehired" as a temporary employee in the the pressroom. November 26, 1952: "Terminated" in the pressroom and "rehired" as a permanent em- ployee in the shipping department. January 26, 1953: "Terminated" in the shipping department and "rehired" as a temporary employee in the pressroom. REYNOLDS METALS COMPANY 821 had previously been agreed that no temporary employees could vote . . . ." Later he phrased it as , " it was agreed that none other than permanent people would be eligible." More significant , and strongly indicative of an intent at that time to include Goosetree , is the fact that , on the eligibility list, received in evidence , a date was set opposite the name of each of the 6 struck " extra" employees . This data showed that 1 had been employed only 6 days earlier, and that none of the others had been employed longer than 23 days. Add to these facts the listing of Goosetree ' s name on that same list free of special designation , his uninterrupted employment of 7 months before February, the Employer's failure to come forth at that conference with any assertion that Goosetree should be ineligible , and' the fact that , under Board precedent, the Petitioner had every right to believe that Goosetree would be eligible , and it is difficult to perceive how this record could support a finding that the parties had agreed that he was not eligible to vote. I would normally respect and follow a 'stipulation of the parties adopting the Employer ' s definition of "temporary" employees and exclude them from voting on that basis, if it were established that such were their intentions . In this case, however , as I read the record , the most that was stipulated was that temporary employees as a class should be ineligible. There is absolutely no showing that the parties agreed to accept the Employer's somewhat unique definition of "temporary " or even that the Union was aware of this definition . Under these cir- cumstances , I think it more reasonable to assume that the parties intended to adopt the Board ' s established definition of the term "temporary ." This definition , everyone must agree, makes Goosetree eligible to vote. Member Beeson took no part in the consideration of the above Decision and Certification of Results of Election. REYNOLDS METALS COMPANY and I NTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, Peti- tioner REYNOLDS METALS COMPANY and UNITED STEEL- WORKERS OF AMERICA, CIO, Petitioner Cases Nos . 32-RC- 712 and 32-RC-714. May 10, 1954 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held in the above - entitled cases before Joseph W. Bailey , hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 108 NLRB No. 120.