H. N. Thayer Co.

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the record does not reveal any unlawful conduct on the part of Respondents herein except the modification of the contract with the Union, it would seem that no danger exists that Respondents in the future may commit other unfair labor prac- tices unrelated in kind to that found. Therefore the cease and desist order recom- mended herein will be limited to the specific unfair labor practice in question. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local No. 843, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of United Telephone Company of the West's plant, traffic, and accounting department employees , excluding supervisory employees as defined in the Act, con- stitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Brotherhood of Electrical Workers, Local No. 843, AFL, was on or about June 1, 1953, and at all times thereafter has been, the exclusive rep- resentative of all the employees in the above described unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act. 4. By modifying its contract with International Brotherhood of Electrical Work- ers, Local No. 843, AFL, on or about June 16, 1954, in violation of Section 8 (d) of the Act, the Respondents have refused to bargain with said Union in violation of Section 8 (a) (5) of the Act. 5. By said conduct, the Respondents also interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and have thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] H. N. Thayer Company and Local 154, United Furniture Workers of America, CIO, Petitioner Thayer Company and Local 154, United Furniture Workers of America, CIO, Petitioner. Cases Nos.1 RC-39,00 and 1-RC-$921. May 18,1955 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Sidney A. Coven, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employers. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties generally agree that a production and maintenance unit at each Employer's plant is appropriate. However, the parties 112 NLRB No. 105. H. N. THAYER COMPANY 793 do not agree as to the inclusion of one category of employees. In disagreement with the Employers, the Petitioner contends that the watchmen-firemen employed by each Employer should be included in the unit. It appears that the employees in this classification not only are charged with firing the boilers on each shift , but also enforce company rules against employees and other people, and prevent un- authorized persons from entering the plants. On the basis of the fore- going, we find that the watchmen-firemen are guards within the mean- ing of the Act.' Accordingly, we shall exclude them from the units. Upon the entire record in this case, we find that the following employees of the Employers at their respective Gardner, Massachu- setts, plants constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees, excluding office clerical employees, professional employees , watchmen-firemen, guards, sample- maker, and all supervisors as defined in the Act. 5. The major issues raised at the hearing and in the parties' brief center around the eligibility of certain employees to vote. In a prior unfair labor practice proceeding , the Board ordered 103 employees of the Employers to be reinstated.2 After an appeal, the First Circuit Court of Appeals enforced the Board order in major part, but re- manded to the Board the question of whether "under the circumstances there was cause for the Respondents' refusal to rehire the particular strikers involved in the non-Section 7 activity, and if not, whether reinstatement of these employees would effectuate the policies of the Act." 3 This question is now under consideration by the Board. The Employers contend : (1) A representation election should not now be directed because of the unfair labor practices pending before the Board; (2) those employees ordered reinstated by the Board and the circuit court who have no reasonable expectancy of reemployment are not entitled to vote; ( 3) if the Board allows the employees referred to in contention (2) to vote, other employees in layoff status with the same or greater seniority should be allowed to vote; (4) the employees involved in the non-Section 7 activity whose right to reinstatement is presently before the Board should not be entitled to vote; (5) if the Board finds that the employees referred to in contention (4) are entitled to reinstatement , an equivalent number of other employees should be dropped from the voting list. We shall treat each of the Employer's contentions separately. 1. The Employers contend that a representation election should not be directed because of the pending unfair labor practice charges I Walterboro Manufacturing Corporation, 106 NLRB 1383. 9 99 NLRB 1122 a N L. R B v. Thayer Company, 213 F. 2d 748 (C. A. 1), cert. denied 348 U. 9 883. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against the Employers. A motion to dismiss based on the same argu- meilt was filed prior to the hearing. We have held that it would be nn- equltable to permit the Employers to make then own alleged miscon- duct the basis for dismissing a representation petition.4 Accordingly, we shall deny the Employers' motion to dismiss the petition and shall not withhold directing an election because of the pending charges. 2. The Eniployeis' second argument is that some 14 employees' found to have been discrnninatorily discharged and ordered uncondi- tionally reinstated by the Board and the circuit court of appeals have no reasonable expectancy of reemployment, either because the departments in which they were formerly employed have been elimi- nated, or because even if they had not been discharged but had continued to work, they would not now be working because of a de- crease in the Employers' business. These employees are, now on layoff status, with their names on a preferential hiring list. It is contended therefore that these 14 employees re not eligible to vote if a represen- tation election should be directed. We have been administratively advised that in effecting compliance with the Board's Order as enforced, the 14 employees have been placed in layoff status and on a preferential hiring list rather than reinstated, it having been determined that their former or substantially equivalent positions were filled by employees with greater seniority. It appears, therefore, that the Employers have, except for the two employees con- sidered below, achieved compliance with the reinstatement order. Therefore, since the record discloses that there is no reasonable ex- pectancy that these 12 employees will be reemployed, we find that they are ineligible to vote in the election directed herein. On the other hand, with respect to Charles Dwyer and Alphege Desmarais, it has not yet been determined whether the Employers have complied with the reinstatement order. Under the circumstances, we shall not at this time make any determination regarding these two employees' eligi- bility, based on their prospects of reemployment, but shall allow these individuals to participate in the election by casting challenged bal- lots. However, their ballots will be segregated and will not be counted unless determinative of the election results. In the latter event, the final disposition of this case will await the outcome of the compliance proceeding as to these two employees. 3. The Employers further contend that if the Board decides that the 14 discriminatorily discharged employees discussed above are eli- gible to vote, it should rule that all employees, including those laid off, with the same or greater seniority, are entitled to vote. 4 Slolce7y Foods, Inc , 78 NLRB 842, at 844 6 The names of these employees are as follows • Roger P Richard , Edward E Fontaine, Emil LeBlanc, Adelin Desroche , Richard C Robinson , Viola Leger, Donald Kartunen, Alphege Desmarais , Norman A Leger , Camille Letellier, Joseph E. Cormier , Charles Dwyer, Vieno Spiruvnori , and Bertha LeBlanc. H. N. THAYER COMPANY 795 As to those employees who have been laid off but who do not come within the purview of the Board's and First Circuit Court's order of reinstatement, the applicable test is whether at the time of the election, there is any reasonable expectancy of further employment with the Employers in the near future.' The Employers testified that their volume of business has been on the decline for the last 6 years, and that as a consequence some departments have had to be shut down and the employee complement in each department decreased. In view of these facts, we conclude that the employees who have been laid off and who have not been ordered reinstated by the Board and the circuit court, have been permanently laid off and have no reasonable ex- pectancy of reemployment. Accordingly, we find them ineligible to participate in the election hereinafter directed.' - 4. The Employers' fourth contention is that those employees whose right to reinstatement is now under the Board's consideration by virtue of the remand order from the circuit court are not entitled to vote, as "there is no reason to believe that they will be reinstated." As noted above, the circuit court remanded to the Board the question of whether "under the circumstances there was cause for the respondents' refusal to rehire the particular strikers involved in the non-Section 7 ac- tivity. . . ." Under the circumstances, we shall not at this time make any deter- mination of their eligibility based on the prospects of reemployment, but shall allow the individuals whose right to reinstatement is being considered by the Board under the remand order to participate in the election by casting separate challenged ballots in accordance with the Board's practice.' However, their ballots will be segregated and will not be counted unless determinative of the results of the election. In the latter event, the final disposition of this case will await the out- come of the unfair labor practice proceeding which is still under consideration by the Board.' By allowing these individuals to vote, we are not to be taken as having passed in any way on the legality or the illegality of their discharges. 6 Falcon Tin Can Company, 97 NLRB 180, at 182 4 F. C. Mason Conmpany, 86 NLRB 71, at 72 8Keystone Electric 11anufacturinq Company, 89 NLRB. 1391, at 1392 The cncult court remand order does not specify the employees whose rights to ienistatement are to be con- sidered by the Board The Employers contend that some 22 employees are involved ; whereas, the Petitioner maintains that the number is considerably smaller. Subject to subsequent amendment in the unfair labor practice pm oceeding now before the Board, we order that the ballots of the following 22 employees be segregated Thayer Company Arthur Ares, Robert Desolier, Amos Fontaine, Robert A. Sidman, T Earnest Martin, Paul flame], Arthur Leger. and Rene J Hamel II AT Thayer Conipan ii. Bertha Anderson, Paul H. Ballentine, Dominick Daddario, Albert J. Gallant, Joseph Theodore. Joseph LeBlanc, Herbert Savoie, Thaddee LeBlanc, Alyie J. Gallant, Laurie Gallant, ITactor Henry, Mallet J Robichaud, Francis Arnsenault, Edgar J Gallant. g The Boa, d's decision on the issue which was remanded to it (i e., the reinstatement rights of certain employees who engaged in non-Section 7 activity ) is binding on the parties unless and until it is set aside by a court of competent jurisdiction. Ohio Ferro Alloys Corporation, 107 NLRB 504, 507 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The final argument of the Employers is that if the employees involved in the unprotected activities are ordered reinstated and per- mitted to vote, an equivalent number of employees should be dropped from the voting lists. We find this contention to be without merit. The Board permits all employees to participate in a representation election who were employed during the payroll period immediately preceding the date of the Direction of Election. We see no reason for prohibiting some employees, who otherwise would be eligible to vote, from the privilege of exercising their franchise rights simply because other employees discriminatorily discharged are ordered reinstated. [Text of Direction of Elections omitted from publication.] J. I. Case Company and International Association of Tool Craffts- men, Local No. 1, National Independent Union Council, Peti- tioner. Case No. 18-RC-2430. May 18,1955 -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 Ray C. Jenkins, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Intervenor contended at the hearing that its contract exe- cuted March 22, 1954, covering the employees petitioned for, bars an election at this time. However, that contract, effective until March 22, 1955, contains a 60-day automatic renewal clause. The Petitioner requested recognition on January 19, 1955, prior to the January 21, 1955, Mill-B date,2 and filed this petition on January 24, 1955, well within the 10-day rule set forth in the General Electric X-Ray case.' We therefore find that the petition was timely and the contract is not a bar. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 'The motion of the Intervenor, International Association of Machinists, District 102, AFL, for oral argument is denied as the record and briefs adequately present the issues and the positions of the parties. 2 See Mill B, Inc, 40 NLRB 346. 8 See General Electric X-Ray Corporation, 67 NLRB 997. 112 NLRB No. 104.