Barry Controls, Inc.

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not discriminated against James Adcock , William E. Helms, Bobby Joe Klingel, and Katie Mills. Upon the basis of the above findings of fact, and conclusions of law, and upon the entire record in the case, I make the following: RECOMMENDATIONS As has been found above, the Respondent interfered with, restrained , and coerced its employees by various type of conduct. In addition, it discouraged membership in the Union by discriminatorily discharging or refusing to reinstate 10 employees. Because of the underlying purpose and tendency of this unlawful conduct, I conclude that there exists danger that the Respondent will in the future commit other unfair labor practices. Accordingly, it will be recommended that the Respondent cease and desist from the unfair labor practices found and also from in any other manner infringing upon the rights guaranteed in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent offer to the employees found to have been discriminatorily discharged or denied reinstatement immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges . If there are not sufficient positions available5in appropriate job classifications , the Respondent shall make room for the employees ordered reinstated by dismissing to the extent necessary employees oc- cupying such classifications who were hired after noon, October 1, 1953.49 If after such dismissals there are still not sufficient positions available, all existing positions in the appropriate job classifications shall be distributed among the employees ordered reinstated and other employees who were hired before noon , October 1 , 1953, without discrimination against any of them because of his or her union affiliation or strike or concerted activities, following such system of seniority or other nondiscriminatory practices as would normally have been applied by the Respondent to determine job retention rights upon a reduction in force. All employees remaining after such dis- tribution, including those ordered reinstated , for whom no employment is immediately available, shall be placed upon a preferential list and offered reemployment as work becomes available in a suitable classification, and before other persons are hired for such work, in the order required by the Respondent's normal seniority system or other nondiscriminatory practices. It will also be recommended that the Respondent make whole the employees found to have been discriminatorily discharged or denied rein- statement for any loss of earnings they may have suffered because of the discrimina- tion against them, by paying to each of them a sum of money equal to the amount he or she normally would have earned from the date of the discrimination against him or her 50 to the date of the offer of reinstatement, less his or her net earnings during the said period. The back pay provided for herein shall be computed on a quarterly basis in the manner established by the Board; earnings in one particular quarter shall have no effect on the back-pay liability for any other period. [Recommended Order omitted from publication.] 49 In the case of Uthoff, after September 4, 1953. eo Uthoff was discriminatorily discharged at the close of work on September 4, 1953. Causey, Nelson, and Pope were discriminatorily discharged before 1 p. M. on October 1. Ivadell Adcock, Kelley, Lilly, Livingston, Loveless, and Montgomery were discriminatorily denied reinstatement on October 2, before the start of the workday. Barry Controls, Incorporated and United Steel Workers of America, CIO, Petitioner. Case No. 1-RC-3970. July 6, 1955 DECISION AND DIRECTION On April 25, 1955, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the First Region among employees of the Employer in the stipulated unit. 113 NLRB No. 5. BARRY CONTROLS, INCORPORATED 27 Upon the completion of the election, the parties were furnished a tally of ballots. The tally showed that of approximately 141 eligible voters, 119 cast ballots, of which 54 were for and 47 were against the Petitioner, and 18 voted challenged ballots. The challenged ballots were sufficient in number to affect the results of the election. In accordance with the Board's Rules and Regulations, the Re- gional Director investigated the challenges and, on May 10, 1955, issued and duly served upon the parties a report on challenged ballots. Thereafter, on May 20, 1955, the Employer filed timely exceptions to the Regional Director's report. The Petitioner filed no exceptions. Upon the basis of the entire record in this case, the Board makes the following findings : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Water- town, Massachusetts, plant, including truckdrivers, shipping, receiv- ing, and stockroom employees, and plant clerical employees, but ex- cluding office clerical employees, guards, watchmen, laboratory tech- nicians, professional employees, and supervisors as defined in the Act. 5. In his report on challenged ballots, the Regional Director recom- mended that the challenges to 17 ballots be overruled and that the challenge to the ballot of Lillian Wilson be sustained. The Employer contends in its only exception that the Regional Director erred in recommending that the challenge to Lillian Wilson's ballot be sus- tained. The Regional Director found that Wilson was ineligibile to vote because she did not commence work at the Employer's plant until after March 20, 1955, the established eligibility payroll date. The Em- ployer argues that, because it hired Wilson before that date, she was an employee eligible to vote. The Board's Rules require that, in order to vote, an individual must be employed and working on the established eligibility date, unless that individual was absent for one of the reasons set out in the Direc- tion of Election or election agreement.' As Wilson had not begun 1 The Goldenberg Company, 77 NLRB 335, 337; J. Halpern Company, 108 NLRB 1142, 1143. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -work on the eligibility payroll date, we find, in accord with the Re- gional Director, that she was ineligible to vote. Accordingly, the challenge to her ballot was properly sustained. As no exception was taken to the remaining findings and recom- mendations of the Regional Director affecting 17 ballots, we shall direct that those ballots be opened and counted. _ [The Board directed that the Regional Director for the First Re- gion shall, within ten (10) days from the date of this direction, open and count the ballots of Edward Arnold, Janet Baldasaro, George Bennett, John Boyle, Paul Clifford, Douglas Collins, Cecil Crowther, Thomas Gannon, George Kenney, Michael Margareci, Alton Moore, Robert Morrison, Robert Ranney, George Luscombe, George Connolly, Jerry Greenblatt, and the ballot identified as number (18), and shall thereafter serve upon the parties a supplemental tally of ballots.] Harold Hibbard and Ben R. Stein, Individually and as a Part- nership, d/b/a Hibbard Dowel Co. and Local 18-B, Furniture and Bedding Workers Union, United Furniture Workers of America, C.I.O. Local 189, Building Service Employees Union, A.F.L. and Local 18-B, Furniture and Bedding Workers Union , United Furni- ture Workers of America, C.I.O. Cases Nos. 1,3-CI-1703 and 13-CB-308. July 7,1955 DECISION AND ORDER On February 28, 1955, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ent Union and the General Counsel filed exceptions to the Interme- diate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed with the exception noted in the margin.' The Board has considered the Intermediate Report, the 1 The Trial Examiner excluded a certain contract between the Respondents, which the General Counsel offered in evidence , because the parties conceded its execution. However, as this document is involved in the issues here presented , we find that the Trial Examiner erred in his ruling. Accordingly, we hereby reverse the Trial Examiner 's ruling and receive this document in evidence as General Counsel's Exhibit No. 15. 113 NLRB No. 4.