Rheem Manufacturing Co.

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT perform, enforce, or give effect to our contract entered into in July 1954'with Independent Machine Workers Union of Lancaster, Ohio, or to any modification, extension, supplement, or renewal thereof unless and until said organization shall have been certified by the National Labor Relations Board. ` WE WILL NOT encourage membership in said Union , or any other labor organization, by- -discriminating against employees in regard to, hire, tenure of employment, or terms and conditions of employment. All our employees are free to become, remain , or refrain from becoming members of any labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended. ASSOCIATED MACHINES, INC., Employer. Dated---------------- By---------------------------------------------- - (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not he altered, defaced, or covered by any other material. .Rheem Manufacturing Company and United Steelworkers of America, CIO, Petitioner. Case No. 4-RC-2614. ' October. 13, 1955 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES - On June 1, 1955, pursuant to a Decision and Direction of Election of the National Labor Relations Board,' an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Fourth Region among the employees of the Employer in the unit found appropriate by the Board. Upon the conclusion of the Election, the parties were furnished a tally of ballots. The tally showed that there were, 187 votes cast, of which 134 were for the Petitioner, 51 were for the Intervenor, and 2 ballots were challenged. Thereafter the Intervenor filed timely objections to the election. After an investigation, the Regional Director, on June 7, 1955, issued and duly=served upon the parties his report on objections, which is at- tached hereto. In his report the Regional Director made various factual findings, and concluded that the Intervenor's objections lacked merit, and recommended that they be dismissed and that an appropriate certification be issued by the Board. The Intervenor filed timely ex- ceptions to the Regional Director's report on objections. The Board has considered the Intervenor's objections, the Regional Director's report on objections, and the Intervenor's exceptions thereto. For reasons hereinafter stated we find the Intervenor's objections and exceptions to be without merit. We therefore deny the Intervenor's request that a hearing be held on its exceptions to the Regional Di- rector's report. 1 Not reported in printed volumes of Board Decisions and Orders. 114 NLRB No. 74. RHEEM MANUFACTURING COMPANY 405- Thef • Objections 'The Regional Director recommended that objections numbered 6, and 8 be overruled. As there were no exceptions filed to these recom mendations they are hereby adopted. , . I . . I The Intervenor's objections numbered 1, 2, 3, 4, 5, and 7, which the Regional Director recommended be overruled, and to which recom- mendations the Intervenor filed exceptions, are discussed below. Objection No. 1: The Intervenor contends that prior to the election the Employer expressed favoritism for the Petitioner, thereby thwart- ing the employees' free choice' in the 'election. The Intervenor asserts that on or about May 14, 1955, the Employer's production manager,; Thomas O'Hagan, while conducting a safety meeting remarked to. the employees present that,they should vote for the union that prom- ised job security and not for the union that offered to obtain pay. increases; and that such remarks were made in the context of the fact that the Intervenor's campaign was based upon.securing wage, in- creases. The Intervenor does not contend that O'Hagan promised benefits, threatened, or in any other way coerced the employees in con- nection with his remarks. In such circumstances, we find, in agree- ment with the Regional Director, that O'Hagan's statements, even. if made,2 were at the most privileged expressions of preference for one union over the other, and do not warrant setting aside the election.3 Objection No. 2: The Intervenor contends that certain of the Em-, ployer's leadmen campaigned on behalf of the Petitioner, thereby pre- venting the employees from expressing their free choice in the. elec- tion. Prior to the Board's Decision and Direction of Election herein, the leadmen in question had been represented by the Intervenor as rank- and-file employees and members of the bargaining unit. It appears that at all times material to the discussion herein the' leadmen were mem- bers of the Intervenor. The Board's Decision and Direction of Elec- tion, which issued May 12, 1955, found the leadmen to possess super- visory authority and excluded them from the unit. The Intervenor does not contend that any of the leadmen, with the single exception of James Burnett, campaigned after the Direction of Election issued. Such campaigning then did not occur during the "critical period from the issuance of the Direction of Election to the date of the election," and, whatever its nature, was too remote in point of time to warrant setting aside the election.4 Burnett denied that he campaigned for the Petitioner after the Di-- rection of Election. Moreover, the Intervenor does not contend that. Burnett, or for that matter any of the leadmen, promised benefits, threatened, or in any other manner coerced the employees in order to' 2 O'Hagan denies making the statements. See Westinghouse Electrsc Corporation, 110 NLRB 332, p. 333 See Lincoln Plastics Corporation, 112.NLRB 291. 406 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD obtain support for the Petitioner. In these circumstances, even as- suming that Burnett and other leadmen continued to campaign after the Direction of Election, we find in agreement with the Regional Di- rector, in the -light of their membership in the Intervenor Union, tl*,jy- prior inclusion in the unit, and the noncoercive nature of their con- duct, that the impact upon the employees' free choice of the leadmen's efforts on behalf of the Petitioner herein was not such as to cause us to overturn the election. With respect to the remaining incidents cited by the Intervenor in support of this objection, we find that neither the fact that Leadman Armstrong briefly wore a badge indicating support for the Petitioner on a day prior to the election, nor the fact that most of the leadmen appeared at the polls on the day of the election to vote, which vote was denied without incident pursuant to the terms^of the Decision and Direction of Election herein, are sufficient reason to require the election to be set aside. Objection No. 3: During the period immediately preceding the election, the employees were covered by an agreement extending a bargaining contract between the Employer and the Intervenor, which had expired on April 30, 1955. Neither the extension agreement nor the original contract mentioned retroactive pay. Prior to the elec- tion the Intervenor distributed a leaflet which indicated that the em- ployees might lose retroactive pay if they did not support the Inter- venor at the election. The Intervenor asserts that a sworn statement submitted by employee Jackson establishes that one Serlenga, a rank- and-file employee and adherent of the Petitioner, told some employees prior to the election that the Employer's personnel director, Jerry Russ, had stated that any increases subsequently negotiated would not be made retroactive to the period during which the extension agree- ment was in effect. The Regional Director found no credible evidence to support a finding that Russ made the statement attributed to him. However, such a statement, even if made, is nondiscriminatory in nature, in that it does not indicate that the retroactive pay issue hinged upon the victory of either union in the election, and clearly does not constitute a ground for setting aside the election. Objection No. 4: The Intervenor also contends that the election should be set aside because prior to the election some unknown person placed an X in the USA-CIO (Petitioner's) square of the sample bal- lot portion of several posted notices of election, which notices, so marked, remained posted throughout the day of the election. The Em- ployer denies knowledge of the defacement of the sample ballot until after the election. We find that this defacement of the notices of elec- tion, even if known by the Employer before the_ election- to have existed, is not cause to set aside the election., 5 See Lloyd A. Fry Roofing Co., 108 NLRB 1297, p. 1299. RHEEM MANUFACTURING COMPANY 407 Objection No. 5: In this objection the Intervenor contends that while the Employer permitted adherents of the Petitioner to campaign freely about the plant, it did not permit the Intervenor's supporters the same opportunity. The Regional Director in his report states that although there is some evidence indicating that certain employees campaigned for the Petitioner "there is no credible evidence that this activity was encouraged, condoned, or even witnessed by the Employ- er's foremen or other supervisory personnel." The report makes no mention of the existence of any evidence tending to show that the In- tervenor's supporters were discriminatorily restricted by the Employ- er in their efforts to conduct a campaign on behalf of the Intervenor. In its exceptions, the Intervenor asserts that the portion of the Regional Director's report which states that there is no credible evi- dence showing that the Employer's supervisors participated in the campaign in support of the Petitioner, is contrary to evidence con- tained in sworn statements of various employees which was presented to the Regional Director during his investigation. The Intervenor, however, does not specify in what details the Regional Director's state- ment is inconsistent with the alleged sworn -statements, or to what ex- tent the supervisors participated in the campaign. Moreover, in neither its objections nor its exceptions does the Inter- venor contend that the campaign as conducted was, absent a showing that the Intervenor's supporters were discriminatorily denied the op- portunity to campaign, coercive in nature. In this latter respect, the Intervenor in its exceptions does not appear to deny that it failed to submit to the Regional Director, along with its objections, evidence which would tend to support its allegation that the Intervenor's sup- porters were discriminatorily restricted by the Employer from cam- paigning for the Intervenor. Instead, the Intervenor now contends that oral examinations of the employees who submitted the sworn statements; serve to supplement the facts contained-in the sworn state- ments with facts pertaining to the restrictions placed on the Inter- venor's followers. The Intervenor does not specify who conducted the oral examinations to which it refers, or what facts the oral examina- tions revealed. Moreover, the Intervenor makes no attempt to explain why the supplementary facts were not included in the sworn state- ments. In such circumstances, we agree with the Regional Director, that`the Intervenor has not presented sufficient evidence to support the allegations contained in its objection numbered 5. Objection No. i : The Intervenor contends that the election should be invalidated because a large number of the Employer's laid-off em- ployees were improperly denied an opportunity to vote by a preelec- tion ruling of the Regional Director. The Intervenor asserts that the ruling of the Regional Director was contrary to the terms of the exist- 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing contract between the Intervenor and the Employer and-also con- trary to "the. Employer's policy of rehiring former employees." The Regional Director found in his report that approximately 18 months ago the Employer laid off approximately 800 employees as a result of a slump in its defense production; that the contract referred to by the Intervenor provided that employees who were absent from their employment for more than 6 months, for any reason, lost their seniority rights; 6 and, accordingly, that the Employer was under no contractual obligation to rehire the laid-off employees. The Regional Director further found that even should the Employer successfully complete its current negotiations for new defense business, it would need to rehire only some 70 to 80 of its 800 laid-off employees, and that the Employer did not know which of the laid-off employees it would rehire: In its exceptions, the Intervenor does not challenge the Re- gional Director's findings, nor does the Intervenor show why the laid- off employees have a reasonable expectancy of reemployment under the Employer's "policy." Accordingly, we agree with the Regional Director that none of the laid-off employees has a reasonable, expect- ancy of reemployment within the foreseeable future. • In view of the foregoing, we find that the Intervenor's objections and exceptions do not raise substantial and material issues with respect to the conduct of the election, and they are hereby overruled. As the tally shows that a majority of the valid votes have been cast for the Petitioner, we shall certify the Petitioner as the collective-bargaining representative of the employees in the appropriate unit.' [The Board certified United Steelworkers of America, CIO, as the designated collective-bargaining representative of the employees in the unit found appropriate.] , p The Employer took the position that all the employees who had been laid off more than 6 months were permanently terminated and properly declared ineligible to vote v The challenged ballots do not affect the results of the election Sefton Fibre Can Company and International Chemical ' Workers Union, A. F. L., Petitioner Sefton Fibre Can Company and Lodge 681, District Lodge 27, International Association of Machinists, A. F. L., Petitioner. Cases Nos. 9-RC-P24.95 and 9-RC-2506. October 13, 1955 DECISION AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, and thereafter consolidated, a hearing was held before 114 NLRB No. 75. ,