Marlin-Rockwell Corp.

In the Matter Of MARLIN-ROCKWELL CORPORATION and LOCAL No. 3338, UNITED AUTOMOBILE WORKERS OF AMERICA Case No. R-342 Ball Bearings Manufacturing Industry-Representatives: eligibility to participate in choice : employees laid off because of lack of work-Employee Status: employees. laid off because of lack of work held to retain employee status-Election : Company representatives, presence at: matter for discretion of Board representatives-Majority Rule: meaning of: Section 9 (a) inter- preted-Certification of Representatives : following election. Mr. Peter J. Crotty, for the Board. Slee, O'Brian, Hellings, & Ulsh, by Mr. Dana B. Hellings and Mr. John Van Sickle, of Buffalo, N. Y., for the Company. Mr. Daniel B. Shortal, of Buffalo, N. Y., for the Union. Mr. A. Bruce Hunt, Jr., of counsel to the Board. CERTIFICATION OF REPRESENTATIVES June 10, 1938 On February 11, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled case.' The Direction of Election directed that an election by secret ballot be conducted among all the employees of Marlin-Rockwell Corporation, herein called the Company, who were employed at the Jamestown, New York, plant as shown on the pay roll as of September 24, 1937, excluding those who have since quit or been discharged for cause and excluding clerical, supervisory, executive, and sales employees, engineers, draftsmen, and apprentices. Pursuant to said Decision and Direction of Election, an election by secret ballot has been conducted under the direction and supervision of Henry J. Winters, the Regional Director for the Third, Region (Buffalo, New York). On February 26, 1938, the Regional Di- rector, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued and duly served upon the parties an Intermediate Report on the 15 N. L. R. B. 206. 836 DECISIONS AND ORDERS 837 election. As to the balloting and its results, the Regional Director reported as follows : Total number eligible to vote------------------------------- 407 Total number of ballots counted---------------------------- 330 Ballots in favor of United Automobile Workers of America, Local No. 338----------------------- 175 Ballots against United Automobile Workers of America, Local No. 338-------------------------------- 155 Void ballots------------------------------------------------ 2 Challenged ballots------------------------------------------ 9 Objections and exceptions, dated February 28, 1938, to the bal- loting and to the Intermediate Report were filed by the Company. These exceptions, as, amended at. the hearing hereinafter mentioned, are that (1) the number of votes cast for the Union does not con- stitute a majority of those employees eligible to vote in said elec- tion; (2) no representative of the Company was permitted to ob- serve the balloting in order to assure its being conducted in ac- cordance with said Decision and Direction of Election; (3) certain employees within the appropriate unit, but laid off since September 24, 1937, were permitted to vote; and (4) certain persons, who the Company contends were eligible to vote, did vote challenged ballots which were not counted in the final tally. The Regional Director found that the objections and exceptions raised a substantial and material issue with respect to the conduct of the ballot and, acting pursuant to Article III, Section 9, of the Rules and Regulations, on March 24, 1938, issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing on said objections and excep- tions was held on April 4, 1938, at Buffalo, New York, before Her- bert A. Lien, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by coun- sel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on>objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. We have fully considered the objections and exceptions filed to the Intermediate Report of the Regional Director and the testimony with respect thereto and we find that they are without merit. The first objection, namely, that the total vote cast in favor of the Union does not, constitute a majority of those employees eligible to vote, 838 NATIONAL LABOR RELATIONS BOARD has been raised and decided on other occasions.2 As to the second objection, we are of the opinion that, under the circumstances presented, the refusal to permit the Company to have a representa- tive at the balloting was not an abuse of discretion on the part of the representatives of the Board. With respect to the third objection, namely, that persons not em- ployees at the time of the election were allowed to vote, the facts must be stated somewhat at length. Prior to the election the Com- pany furnished to the Board two lists of individuals who were on its pay roll as of September 24, 1937. One list contained the names of persons considered by the Company as eligible to vote. On it were 233 names. The second list contained the names of persons considered by the Company as ineligible to vote and contained 223 names. On this second list were named 2 cleaning women, 6 ap- prentices, 16 foremen, 25 persons who had quit or else had been discharged for some reason other than lack of work, and 174 per- sons who had been laid off for lack of work. These lay-offs oc- curred in October, November, December, and January, particularly near the end of the year 1937. Of the 174 so laid off, 119 voted in the election. The testimony adduced at the hearing of April 4, 1938, indicates that when the 174 men were laid off no commitments were made to any of them by the Company concerning reemploy- ment and that any of them who will later be reemployed will re- turn as new employees. We believe, however, that those employees who were laid off because of lack of work retained their employee status and clearly had an interest in the election. They were entitled to vote. The business of the Company is seasonal and is largely dependent upon the automotive trade. In other lay-off s many of the 174 employees above- mentioned have been included. They expect, and reasonably so, to be reemployed upon an improvement in business conditions. The Com- pany maintains a list of all men laid off so that they may be called back as needed. The usual policy of the Company is to reemploy those laid off as business conditions warrant. The words "excluding those who have since quit or been discharged for cause" used in the Direction of Election were not intended and should not be construed to exclude employees who were severed from employment because of slack work under such conditions as exist in the instant case. As stated in the fourth objection, certain employees whose names appear on the eligible list of voters furnished to the Board by the 2 Matter of lt. C A Manufacturing Company, Inc. and United Electrical & Radio Work- ers of America, 2 N L. R B. 159. See also Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1657,4N L R B 55 DECISIONS AND ORDERS 839 Company were objected to by the Union and cast challenged ballots. Further, certain employees who had been discharged , but for reasons other than lack of work , or who had quit, appeared at the polls, were challenged by an agent of the Board , and were allowed to cast chal- lenged ballots . The ballots were not counted in-either instance, and it is unnecessary to consider them in view of the total number thereof. In no way could they affect the final result. By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT Is IIERE13Y CERTIFIED that United Automobile Workers of Amer- ica, Local No. 338, has been selected by a majority of all the em- ployees of Dlarlin-Rockwell Corporation , at its Jamestown, New York, plant excluding clerical, supervisory , executive, and sales em- ployees, engineers , draftsmen, and apprentices , as their representative for the purposes of collective bargaining, and that, pursuant to Sec- tion 9 (a) of the National Labor Relations Act, United Automobile Workers of America, Local No. 338 , is the exclusive representative of all such employees for the purposes of collective bargaining in re- spect to rates of pay, wages , hours of employment , and other condi- tions of employment. 106791-38-vol vir-34