Gerber Plastic Co.

GERBER PLASTIC COMPANY 269 superintendent has only these 17 employees under his supervision. 'The Employer offered evidence to show that there have been many transfers from the garage attendant classification to other classifica- tions represented by the Electricians and the IAM. Job openings in classifications under the Electricians are posted in the Market Street garage. The wage scale of the garage attendants here in issue and of those under the Electricians is the same. Garage attendants are un- skilled employees, washing, lubricating, and greasing the Employer's automobiles. In view of all the facts in this case, the Board finds that the Employer's Portland, Oregon, garage attendants may appropriately be a part of the unit represented by the Electricians,' or may consti- tute a separate unit represented by the Teamsters. However, we shall make no final unit determination at this time, but shall first ascertain the desires of the garage attendants as ex- pressed in the election hereinafter directed. If a majority of the employees concerned herein vote for the Electricians, they will be taken to have indicated their desire to become a part of the larger unit now represented by the Electricians, and the Regional Director is instructed to issue a certification of results of election to that effect. On the other hand, if a majority of the employees vote for the Team- sters, they will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director is instructed to issue a certification of representatives to the Teamsters for a unit of garage attendants at the Employer's Portland, Oregon, garage which the Board under such circumstances finds to be appropriate for the purpose of collective bargaining. [Text of Direction of Election omitted from publication.] MEMBER MuRDocK took no part in the consideration of the above Decision and Direction of Election. 'If the Electricians does not desire to appear on the ballot for the election directed herein , it may, upon its prompt request to and approval thereof by the Regional Director, have its name removed from the ballot. GERBER PLASTIC COMPANY and UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, CIO, PETITIONER. Case No. 14-RC-2487. October 6, 1954 Supplemental Decision and Certification of Results of Election •Pursuant to a Decision and Direction of Election issued by the Board on April 22, 1954,' an election by secret ballot was conducted on May 7, 1954, under the supervision of the Regional Director for i Gerber Plastic Company, 108 NLRB 403. 110 NLRB No. 32. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Fourteenth Region, among the employees in the unit found appropriate by the Board. Following the election a tally of ballots was furnished the parties. The tally shows that, of approximately 150 eligible voters, 131 cast ballots, of which 60 were for the Peti- tioner, 60 were against the Petitioner, 9 were challenged, and 2 were declared void. On May 13, 1954, the Employer filed an "Objection of Tally of Ballots," contending that one of the ballots declared void should have been counted as a valid ballot. • As the challenged ballots were suf- ficient in number to affect the results of the election, the Acting Regional Director investigated the issues raised by the objection and challenges. On, June 16, 1954, he issued and duly served upon the parties his report on objection and challenged ballots, in which he recommended that (1) the Employer's objection to the tally of ballots should be found to be without merit and overruled, (2) the challenges to the ballots cast by seven employees should be sustained, and (3) the challenges to the ballots cast by Marie Benard and Anna Jo Richards should be overruled and their ballots should be opened and counted. The Employer filed timely exceptions to the Acting Regional Director's report. 1. The void ballot: The Acting Regional Director found that the markings on the ballot, which the Employer contends should have been counted as a valid ballot, do not clearly show the intent of the voter 2 He therefore concluded that the voiding of the ballot was proper, and recommended that the Employer's objection be overruled. The Employer excepts to the Acting Regional Director's conclusion and recommendation, asserting that the ballot clearly establishes the intent of the voter to vote against the Petitioner. We have examined this ballot, and agree with the Acting Regional Director that it does not clearly show the intent of the voter and that the voiding of the, ballot was proper. We therefore find the Employer's exceptions to be without merit and overrule this objection. 2. The challenged ballots: The Board agent challenged the ballots of nine voters because their names did not appear on the eligibility list. The Acting Regional Director's investigation revealed that on April 9, 1954, the Employer laid off 77 employees working in its sponge department located in its Eighth Street and Spruce Street plants.' On the same day the Employer posted a notice to all employees in the sponge department in these two plants which stated that the layoff was due to a reduction in business, and that "There • The disputed ballot is marked with a short diagonal line in the square under the word "Yes," and a heavily marked X with a wavy line through the X in the square under the Void"\o" 4 The Employer' s factories and warehouse facilities are located in three buildings, re- ferred to in the Board 's Decision and Direction of Election as the Spruce Street plant, the Eighth Street plant , and the Pine Street plant. GERBER PLASTIC COMPANY 271 is no foreseeable prospect of re-employment." All of the nine em- ployees whose ballots were challenged were laid off in the April 9 reduction in force. The Acting Regional Director recommended that the challenges to the ballots of seven of these employees be sustained on the basis that these employees had been permanently laid off and have no reasonable expectancy of reemployment in the near future a As no exceptions have been filed to this recommendation, it is hereby adopted. The other two employees whose ballots were challenged, Anna Jo Richards and Marie Benard, were rehired by the Employer after the eligibility date, April 16, 1954, but prior to the election on May 7,1954. Richards returned to work as an injection molding machine operator at a higher rate of pay than she had received before the layoff. The work that she has been doing since she was rehired is substantially different from that which she was doing before her layoff on April 9. Berard returned to work at the Pine Street plant, and is also doing a different type of work from that which she was doing before her layoff. She, however, receives substantially the same rate of pay as she did on her former job. The Acting Regional Director concluded that, as these employees were rehired before the date of the election, they were temporarily. laid-off employees and eligible to vote. He therefore recommended that the challenges to their ballots be over- ruled, and that they be opened and counted. The Employer's exceptions do not take issue with the Acting Regional Director's factual findings, but are directed to his conclusions and recommendations. The Employer contends that Richards and Benard were permanently laid off at the time of the eligibility date, and therefore not eligible to vote in the election. In its exceptions, the Employer states that it rehired them as new employees to fill 2 vacancies which resulted from the unexpected resignations of 2 other employees, after the eligibility date established by the Board. The Employer asserts that, as neither the vacancies nor the reemployment of Richards and Benard was contemplated or foreseen by the Employer on the eligibility date, they should be considered as having been permanently laid-off employees on the eligibility date, and the challenges to their ballots should therefore be sustained. Richards and Benard were permanently laid-off on April 9, 1954, as were the seven other employees, the challenges to whose ballots we have sustained. We see no reason to make any distinction in deter- mining the disposition of the challenges to the ballots of Richards and Benard. As these employees had been permanently laid off on the eligibility date, it is immaterial that they were rehired on different 4These ballots were cast by the following employees Ethel Autry, Annabelle Lewis, Ersie Johnson, Freda Deaton, Leonard Snow, Gladys Brooks, and Edith Gilles 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs, to fill two unexpected vacancies, after the eligibility date but before the election. We shall, therefore, sustain the challenges to their ballots.5 As the Petitioner did not receive a majority of the valid ballots cast in the election, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for United Gas, Coke & Chemical Workers of America, CIO, and that such union is not the exclusive representative of the employees of Gerber Plastic Company in the unit heretofore found appropriate.] 5Insofar as Sylvania Electric Products, Inc., 91 NLRB 296, and the cases upon which it relies, are inconsistent with this decision, they are hereby overruled. BOSTON MUTUAL LIFE INSURANCE COMPANY, PETITIONER and INSUR- ANCE AGENTS INTERNATIONAL UNION, AFL, AND ITS LOCAL 243 and LOCAL 1776, INSURANCE WORKERS OF AMERICA, CIO. Case No. 1-RM-179. October 7,1954 Decision and Order Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on April 1, 1954, in the above- entitled proceeding under the direction and supervision of the Regional Director for the First Region. Thereafter a tally of ballots was fur- nished the parties which showed 185 votes cast for Insurance Agents International Union, AFL, and its Local 243, hereinafter called IAIU-Local 243, 185 votes cast for Local 1776, Insurance Workers of America, CIO, hereinafter called IWA-Local 1776, 1 vote cast against the participating labor organizations, and 1 vote challenged. As the results of the election were inconclusive and no objections thereto were filed, the Regional Director conducted a runoff election on April 15, 1954. The tally of ballots furnished the parties showed that in the runoff election 180 votes were cast for IAIU-Local 243, 188 votes were cast for IWA-Local 1776, and 1 vote was challenged. On April 22, 1954, IAIU-Local 243 filed timely objections to the runoff election. After investigation of these objections, the Regional Director issued his report on objections on May 25, 1954. In his report the Regional Director found that certain conduct of the Employer interfered with the employees' free choice in the election and recommended that the election be set aside. The Employer filed timely exceptions to the report. The Board, having carefully con- sidered the stipulation of the parties, the objections to the election, the report on objections, the exceptions thereto, and the entire record in the case, makes the following findings : 410 NLRB No. 36.