Dura Steel Products Co.

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence in the record to support the allegation in the complaint that the Respondent violated the Act by threats of reprisal, urging, persuading, threaten- ing, and warning employees to refrain from assisting, becoming members of, or remaining members of the Union. Accordingly, the complaint to that extent should be dismissed. There is no evidence in the record to support the allegation in the complaint that the Respondent threatened to discharge employees who engaged in union or con- certed activities and/or activities guaranteed by Section 7 of the Act. Accordingly, the complaint to that extent should be dismissed. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7 ) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not engaged in any unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication.] DURA STEEL PRODUCTS COMPANY and LOCAL 990, INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA (UAW-AFL), PETITIONER . Case No. 21-RC-3477. February 10, 1955 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election issued by the Board in the above-entitled proceeding on July 16, 1954,1 an election by secret ballot was conducted on August 3, 1954, under the direction and super- vision of the Acting Regional Director for the Twenty-first Region, among the employees of the Employer in the unit found to be appro- priate. Following the election, a tally of ballots was" furnished the parties. The tally shows that 118 votes were cast; 4 were cast for the Petitioner and 114 were challenged. No objections to the conduct of the election were filed by either of the parties. As the challenged ballots were sufficient in number to affect the results of the election, the Acting Regional Director, pursuant to the Board's Rules and Regulations, conducted an investigation and, on September 29, 1954, issued and served upon the parties his report on challenges. In his report, the Acting Regional Director recommended that challenges to the ballots of certain individuals be sustained and the challenges to the ballots of other individuals be overruled and that their ballots be opened and counted. Thereafter the Intervenor, United Electrical, Radio & Machine Workers of America (UE), Local 1421, within the time for filing exceptions, filed "An Appeal" from the Acting Regional Director's report, in which it requested the Board to reject the report and order a hearing in this matter. The Inter- venor's requests are hereby denied. 1109 NLRB 179 111 NLRB No. 100. DURA STEEL PRODUCTS COMPANY 591 Strikers and replacements: The ballots of 50 individuals named in Appendix A, attached hereto, were challenged by the Employer and the Petitioner on the ground that. they were economic strikers who had been permanently replaced; the ballots of the 53 individuals named in Appendix B, attached hereto, were challenged by the Intervenor on the ground that they are temporary employees rather than permanent employees who have replaced economic strikers. The Acting Regional Director's investigation showed that when an impasse was reached in bargaining negotiations between the Employer and the Intervenor, a strike was called effective January 11, 1954. One hundred and three production and maintenance employees, includ- ing 7 leadmen and 7 office employees, left the plant and established a picket line. Prior to January 11, and during the strike, the Employer notified all employees that new employees would be hired. The Em- ployer's newspaper advertisements for new employees clearly offered permanent employment. By February 1, 1954, 98 production and maintenance employees had been hired since January 15, 1954, includ- ing 7 working foremen, a new classification replacing the leadman classification. On July 13, 1954, the eligibility date, there were 73 production and maintenance employees, 7 of whom were working fore- men determined by the Board to be supervisors. The decrease of em- ployees was attributed to a business recession which has also caused the reduction of the workweek from 40 to 30 hours. Interviews of Board agents with 51 of the 58 employees hired after January 11, 1954, indicated that 49 were told by management representatives at the time of hire and 47 were told on subsequent occasions that if their work was satisfactory their employment would be permanent. From the foregoing, we agree with the Acting Regional Director that the Employer has permanently replaced those employees who went out on the economic strike, and therefore that they are not eligible voters. We sustain the challenges to the ballots of the individuals listed in Appendix A; we overrule the challenges to the ballots of the individuals listed in Appendix B and shall direct that these ballots be opened and counted. Robert Morerno, Hector Hinojos, Arthur Garcia, Andrew Carrasca, Benito Jauriqui, Alfonso Ratcliffe, and Gilbert Roldan: The ballots of these individuals were challenged by either the Employer or the Employer and Petitioner jointly, on the ground that they were dis- charged during the months of November and December 1953 and were not employees on the eligibility date. The Intervenor contends they are eligible voters because grievances were filed protesting their dis- charges and the Employer has refused to process the grievances. As no unfair labor practice charge has been filed concerning the dis- charges of the above employees, for the purposes of this proceeding, the 7 individuals named above were presumptively discharged for 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause; 2 and we agree with the Acting Regional Director that they- were not eligible to vote. Accordingly, we sustain the challenges to, the ballots of Robert Moreno, Hector Hinojos, Arthur Garcia, Andre Carrasca, Benito Jauriqui, Alfonso Ratcliffe, and Gilbert Roldan. Ray Keenan, Eli IY oast : The Employer and the Intervenor chal- lenged the ballots of Keenan and Yoast on the ground that their em- ployment had been terminated. The Acting Regional Director re- ported the Employer's records to show that these employees were dis- charged on July 13 for inefficiency, and that Petitioner, after investi- gation of the matter, agreed as to the reason for their discharge. Ac- cordingly, we adopt the Acting Regional Director's recommendations with respect to these two employees and sustain the challenges to their ballots.' Louis Segal: The Employer and the Petitioner challenged the bal- lot of Segal on the ground that he is a replaced striker. The Acting Regional Director found that subsequent to January 11, 1954, Segal was permanently replaced, and after a vacancy occurred on July 19, Segal was hired as a new employee on July 20, 1954. On these facts, we find that Segal, an economic striker who had been permanently re- placed, was not an employee on the eligibility date. We sustain the challenge to his ballot. Jessie Moore : The Employer challenged the ballot of Moore on the ground that she is not an employee. The investigation by the Acting Regional Director revealed that Moore was on sick leave with an in- jured hand from May 27, 1953, until September 29, 1953, when she returned to work. After working 4 hours, she left the job claiming that her hand hurt too much to work. On December 2, 1953, the Em- ployer advised her by letter that upon a release from her physician, a job opening existed for her. The Employer stated that the physician advised him in December 1953, that Moore could return to work, and submitted a copy of a letter from the doctor, dated January 11, 1954, to an insurance carrier that he had last examined Moore on December 15, 1953; that it was quite safe for her to return to work and that he did not feel she had been temporarily disabled since his last report, but that her present condition should be considered permanent. On April 23, 1954, after the picket line was terminated, Moore asked the superintendent whether her job was available, and on the 29th was told by the general manager that she had been replaced. An unfair labor practice charge was filed on October 8, 1954, after the Acting Regional Director had issued his recommendation regard- ing this challenge, alleging that Moore and two of the individuals listed in Appendix A had been discriminated against in violation of Section 8 (a) (3). On December 2, 1953, the Acting Regional Di- 2 See Stainless Welded Products, Inc., 104 NLRB 204. 3 See Silver Knit Hosiery Mills, Inc., 99 NLRB 422, 427. DURA STEEL PRODUCTS COMPANY 593 rector dismissed the unfair labor practice charges. No appeal has been taken from the dismissal of the charges. In these circumstances we presume that Moore was denied employment on April 29, 1954, for nondiscriminatory reasons. As she was not an employee on the eligi- bility date, we adopt the Acting Regional Director's recommendation and sustain the challenge to Moore's ballot. Inasmuch as we have overruled the challenges to 53 ballots, we di- rect that these ballots be opened and counted. In the event that a suf- ficient number of these ballots were cast for the Petitioner to give the Petitioner a majority of all the valid votes cast in the election, the Act- ing Regional Director is instructed to issue a certification of repre- sentatives to the Petitioner. If the majority of all valid votes cast is for United Electrical, Radio and Machine Workers of America (UE), Local 1421, then the Acting Regional Director is instructed to issue a certification of representatives to that effect. [The Board directed that the Acting Regional Director for the Twenty-first Region shall, pursuant to the Rules and Regulations of the National Labor Relations Board, within ten (10) days from the date of this Direction, open and count the ballots of all employees listed in Appendix B, attached hereto, and shall thereafter prepare and cause to be served upon the parties a revised tally of ballots, in- cluding therein the count of the said challenged ballots, and issue certification.] D. Abeyta Frank Acosta Lawrence Alvarado Mary Holdan Amaro Iwilla W. Arnold Phillip Barragan Pete M. Barrios W. Beauchan Raymond B. Blanco Lawrence Burch Manuel U. Castorena Gladine Colbert Ernie A. Corella Arthur Del Rio Frank Espinoza Raymond C. Espinoza Fidel V. Garcia Joe S. Garcia Robert Garcia Tony Garcia Appendix A Jessie Gartmon Harry Goldstein Mary Gomez Crestino C. Guerrero Trinidad Hernandez Nathan Klaman Marion A. Knox Peter Lara Henry M. Lopez Luis Lozano Frank J. Macias Joseph Macias Joseph Mesias Gregorio Miranda Raul Nava Ramon Perez Victoriano Perez Paris Pugh Goldman Rattler Rudy Ruiz 594 DECISIONS OF Floyd Salas Samuel Sapolsky G. Hugh Sapp Abraham Serota William Silverman Benjamin Aaronson Frederic Alton Joseph Babineau Walter Bailey Roosevelt Bates Samuel Bates Allen Begnaud Willie Brooks Chester Carter Robert Childress James Cole Clarence Cooley Carl Crandall Arlen Davis Francisco De La Torre Eliseo Estrada Wardell Felstet James Flanagan Adrier Frazier Lucia Gallegos Max Gallegos Victor Guerrero Jon Gunn Wilbert Hardy Harold Henley William Heske Richard Hesketh NATIONAL LABOR RELATIONS BOARD John P. Torres Amelia Valles Rudy M. Vidal Willie Wilson Frank Ybarra Appendix B Eugene Jackson Melvin Jackson Freddie Jenkins Thomas Kelly Lucretia Kennedy Henry Kent Henry Klein Normand La Carra Mary Little Walter Lyon Bernardo Macias Tony Mangan Porter Marshall, Jr. James Mason Richard Montford Ray Moore Albert Nix Edward Perkins Lorin Reynolds Edward Richard Walter Stewart Lawrence Tait Eugene Traverse Carl Ward Elisha Wyatt Carl Young LOCKHEED AIRCRAFT CORPORATION GEORGIA DIVISION I and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 613, AFL,z PETITIONER . Case No. 10-RC-2906. February 10, 1955 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 Gilbert Cohen, hearing officer. 1 The Employer's name appears as amended at the hearing. x At the hearing , Local 613 was substituted for the International as the petitioning party. 111 NLRB No. 94.