A. O. Smith Corp. of Texas

A. 0. SMITH CORPORATION OF TEXAS 5 Smelter Workers for a unit of production employees, which the Board, in these circumstances, finds to be appropriate for purposes of collec- tive bargaining. On the other hand, if a majority in the maintenance voting group do not select the IAM, the ballots of the employees in the maintenance group will be pooled with those of the employees in the production group.' If Mine, Mill & Smelter Workers achieves a majority of the votes in the pooled group,' the Regional Director is instructed to issue a certification of representatives to that labor organization for a unit of production and maintenance employees, which the Board, in such circumstances, finds, to be an appropriate unit for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] 8 If the ballots are pooled , they are to be tallied in the following manner: Votes for the IAM shall be counted as valid votes , but neither for nor against Mine, Mill & Smelter Workers ; all other votes are to be accorded their face value, whether for Mine, Mill & Smelter Workers or for no union. Y At the hearing Mine, Mill & Smelter Workers requested that its name not appear on the ballot of any election directed in a unit sought by the IAM. In view of the Board's decision to pool the ballots under the circumstances described above, we shall accord Mine, Mill & Smelter Workers ' a place on the ballot in the election directed in the main- tenance voting group. A. O. Smith Corporation of Texas and District 37, International Association of Machinists, AFL-CIO, Petitioner and United Steelworkers of America, AFL-CIO. Case. No. 39-RC-894. January 4,1956 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to the Board's Decision and Direction of Election dated September 12, 1955,1 an election was conducted herein on October 11, 1955, under the direction and supervision of the Regional Director for the Sixteenth Region. The election was conducted by secret ballot among a voting group of machine shop employees. Upon the con- clusion of the balloting, a tally of ballots was issued and served upon the parties in accordance with the Board's Rules and Regulations. The tally of ballots shows that there were approximately 14 eligible voters in the voting group; 7 ballots were cast for the Petitioner; 7 ballots were cast for the Intervenor; and the ballots of 9 persons were challenged. Thereafter the Regional Director investigated the issues raised by the challenged ballots, and duly issued a report on challenged ballots. In his report the Regional Director found that the Board agent had 1114 NLRB 56. 115 NLRB No. 3. Fj DECISIONS OF NATIONAL LABOR RELATIONS BOARD challenged the nine ballots, recommended that the challenges to all nine ballots be sustained, and further recommended that the board certify the results of the election as shown by the above-described tally of ballots. The Petitioner has excepted to so much of the Regional Director's report as recommends that the challenges to the ballots of two persons, Lester Miller and Jack Cannon, be sustained. With respect to Miller, the Regional Director's report sets forth the following facts : In September 1952 Miller received a gunshot wound which injured his spine. Ten months later, Miller returned to work and was assigned to the cutter-grinder, which he could operate while sitting. He was also given special rest periods. On February 24, 1955, Miller left the Respondent's employ for further treatment. On August 1, 1955, when he applied for work the company doctor examined Miller and concluded that Miller was not reemployable for physical reasons. The Respondent now has no work which Miller can perform while seated, and he is unable to stand for any length of time. On the basis of such facts the Regional Director concluded that Miller was not an employee of the Company and recommended that the challenge to his ballot be sustained. In its exceptions, the Peti- tioner states that "no proof has been shown that the Company accepted the doctor's conclusion and that Miller had been discharged." We find the Petitioner's argument with respect to Miller lacks merit. In view of the length of Miller's absence from employment prior to August 1, 1955; the reason for such absence; the conclusion of the company doctor on August 1, 1955, that Miller was not "reemploy- able"; and the finding implicit in the .Regional Director's report, as well as in the Petitioner's exceptions, that Miller was not employed after August 1, 1955, we find that Miller's failure to work during the eligibility period was not caused by "illness" within the meaning of that term as used in the Board's Direction of Election. Accordingly, we conclude that the failure of the Regional Director to find that Miller was discharged is of no consequence, and we hereby sustain the- challenge to Miller's ballot. With respect to Cannon, the Regional Director's report sets forth the following : Cannon, a welder, was assigned to the machine shop during an expansion program that began in 1954 and ended in April 1955. He was supervised by the machine shop foreman until July 1955. Since July he has been supervised by the mechanical main-' tenance foreman who supervises all welders. On October 3, 1955, he was transferred to the second shift, and was advised by his foreman that henceforth he would be assigned work on the same basis as other welders and would no longer work exclusively on jobs for the machine shop. There are now 2 welders on each of the 3 shifts. The Company MARSHALL CAR WHEEL AND FOUNDRY CO. 7 asserts that the position of machine shop welder has been abolished and it does not plan to revive the job in the foreseeable future. On the basis of such facts, the Regional Director found that the job of machine shop welder had been abolished, and recommended that the challenge to Cannon's ballot be sustained. In its exceptions, the Petitioner in effect asserts that Cannon was an eligible voter be- cause he was within the voting group during the crucial payroll period established in the Direction of Election herein. We find, however, that even though Cannon may have been within the voting group dur- ing the eligibility period, his subsequent transfer before the election to a job outside the voting group terminated his eligibility to vote.' We shall therefore sustain the challenge to his ballot. As the Petitioner failed to receive a majority of the votes cast in the election, we shall only certify the election's results. [The Board certified that a majority of the valid ballots was not cast for District 37, International Association of Machinists, AFL-CIO, and that the said Union is not the exclusive representative of the em- ployees at the Employer's Houston, Texas, plant in the voting group designated in paragraph numbered 4 of the Decision and Direction of Election herein.] 2 See National Container Corporation of Wisconsin, 99 NLRB 1492 , 1495-1490 Man- ganese Ore Company, 54 NLRB 11132 , 1213-14. Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc. and United Steelworkers of America, AFL-CIO. Case No. 16-CA-443. January 5,1956 SUPPLEMENTAL DECISION, DETERMINATION, AND ORDER On January 7, 1955, the United States Court of Appeals for the Fifth Circuit denied enforcement to an order issued herein by the Board on May 28, 1953,1 based on findings that the Respondent had discriminatorily discharged certain of its striking employees and de- nied others full reinstatement privileges because of their prior con- certed activity. Holding that the Board erred in finding that the Respondent con- doned an illegal strike which was timed without prior warning and might have resulted in substantial physical damage to the plant and pecuniary loss to the employer, the court concluded that the' Board had no authority to compel the Respondent to reinstate employees who 1105 NLRB 57; 107 NLRB 314 (Supplemental Decision and Order). 115 NLRB No. 4.