Brown-Forman Distillers Corp.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing . findings .of.fact, and upon the record as a whole,. I make the following: CONCLUSIONS OF LAW 1. United Furniture Workers of America, AFL-CIO, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By engaging or participating in surveillance , as aforesaid, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning. of Section 8 (a) (I) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Brown-Forman Distillers Corporation and International Union,, United Plant Guard Workers of America (Independent), Peti- tioner. Case No. 9-RC-2975. July 2,1957 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 Harold M. Kennedy,. hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Bean]. 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 parties agree that the appropriate unit is comprised of all the Employer's plant protection employees at its Early Times and. Old Forester plants who are conceded to be guards within the mean- ing of Section 9 (b) (3) of the Act. However, they disagree as to whether or not certain persons on the Employer's seniority list who are not presently working should be included in the unit. The em- ployees in dispute fall into two categories : summer replacements and. laid-off employees. The Employer is engaged in the manufacture and sale of whiskey and other alcoholic beverages. A business rush begins building up in October for the Christmas holidays and at times it is necessary to hire additional employees during this period. At the time an employee is hired, he is placed on the seniority list. The first 60 days is a pro- 118 NLRB No. 50. BROWN-FORMAN DISTILLERS CORPORATION 455 bationary period, and if the employee is unsatisfactory, he is dis- charged during this time. If he is retained for 60 days, and subse- quently laid off, he is placed on a permanent recall basis, and continues to accrue seniority. However, unless he is recalled within a year, all seniority rights are canceled. If an employee fails to respond to recall notice, he is dropped from the seniority list. The three summer replacement guards work primarily during the summer as relief for regular guards on vacation and at times during holiday periods when school is not in session. Two of these persons are employed as school instructors during the school term and the other is a student studying for a graduate degree. In addition to working every summer since 1953, one has also worked during Christ- mas holidays in 1954, and spring vacation in 1955. - Another has worked during the summer in 1955 and 1956. The student worked last summer (1956) from June until August. All three of these employees have been assured by the Employer of their reemployment this summer. They are not eligible to participate in the Employer's pension plan, vacation pay, or Christmas bonuses due to the fact that the rules regulating such funds require an employee to have earnings for a certain period of time each year. The record does not show that the employees have any reasonable expectancy of permanent em- ployment. Under these circumstances, we find that they are temporary or casual employees and exclude them from the unit.' The 3 employees (1 male, 2 females) in layoff status who the Petitioner argues should not be permitted to vote, worked for a time in 1956 as guards. One was originally employed in a production department from October 1955 to January 1956, when she was laid off. She was recalled in April 1956, and worked as a guard until she was laid off in the middle of December 1956. The other 2 worked approxi- mately 1 and 2 months last year. Female guards do not replace male guards, but are limited to guard duties on a production floor where the majority of employees are females. These employees are available for recall any time during the year, but when laid off, are given no as- surance of reemployment except being told that if work is available they will be called. The Board has held that the test as to whether laid-off employees should vote is the reasonable expectancy of their recall in the near future; that the mere fact of continued seniority does not entitle employees to vote.2 As the record fails to show that there is any definite prospect of business conditions warranting their recall, thus providing a reasonable expectancy of their employment, and in view of the lack of assurance from the Employer as to their recall, we find that the laid-off employees have no reasonable expectancy of re- 1 See Central Mutual Telephone Company, Inc., 116 NLRB 1663, 1667. See Higgins, Inc., 111 NLRB 797. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turning to work in the near future. Accordingly, we find they are therefore not eligible to vote in the election. The following employees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act : All plant protection employees of the Employer at its Early Times plant located at Shively, Kentucky, and its Old Forester plant at 1908 Howard Street, Louisville, Kentucky, including the regular part- time employees, but excluding all other employees including the laid- off employees, casual employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Atomic Power Equipment Department of General Electric Com- pany and International Association of Machinists, District Lodge No. 93, Petitioner. Case No. 0O-RC-3232. July 2, 1957 DECISION AND DIRECTION OF ELECTION Upoll a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before David Karasick, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Jenkins]. 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 Petitioner, herein called the IAM, seeks a unit of all hourly rated production and maintenance employees of the Employer's Atomic Power Equipntient Department, herein called APED, current- ly at the Employer's Medium Induction Motor Plant, generally known as the Motor Plant, or MIM, at San Jose, California. The Intervenor, International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the IUE, urges as a bar a national contract and a supplemental agreement covering the production and mainte- i The petition and other formal papers in this proceeding are hereby amended to reflect the Employer's correct name. The Intervenor's motion to dismiss the petition, alleging an insufficient showing of in- terest, is hereby denied, it being well established that the showing of interest is an admin- istrative matter, not subject to collateral attack in a representation proceeding. The Babcock & Wilcox Company, 116 NLRB 1542. For reasons set forth elsewhere in this Decision, the Intervenor's other motions to dismiss the petition, alleging contract bar, inappropriate unit, and prematurity of the instant petition, are also denied. 118 NLRB No. 54.