Mattison Machine Works

58 DECISIONS OF-,NATIONAL LABOR RELATIONS BOARD 2. Within ten,(10) days from the date of this Decision and Deter- mination of Dispute, Local 12, International Union of Operating Engineers, AFL-CIO, and its agents shall notify the Regional Direc- tor for the Twenty-first Region in writing whether or not they will refrain from forcing or requiring West Coast Masonry Contractors, Inc., by means proscribed by Section,8 (b) (4) (D) of the Act, to assign the- work in dispute to members of Local 12, International Union of Operating Engineers, AFL-CIO, rather than to employees of West Coast Masonry,Contractors, Inc. Mattison Machine Works i and United Automobile, Aircraft & Agricultural Implement Workers of America , UAW-AFL-CIO, Petitioner. Case No. 13-RC-5405. March 6, 1958 , SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Board Decision and Direction of Election 8 an election by secret ballot was conducted on July 23, 1957, under the direction and supervision of the Regional Director for the Thirteenth Region of the National Labor Relations Board among the employees in the unit therein found appropriate. Following the election, the parties were furnished a tally of ballots which showed that of approximately 342 eligible voters, 157 cast ballots for the Petitioner, 141 cast ballots against, 18 ballots were challenged, and 1 ballot was held void. On August 8, 1957, the Employer filed objections to conduct affect- ing the results of the election. After investigation the Regional Director on November 19, 1957, issued his report on objections and challenges in which he recommended that the objections be overruled and that eight of the challenges be sustained. As the remaining 10 challenges which he recommended be overruled could not affect the results of the election, the Regional Director further recommended that the Petitioner be certified as the bargaining representative of the employees in the appropriate unit. No exceptions were filed with respect to the Regional Director's recommendation that 10 challenges be overruled. Accordingly, the Board overrules the challenges to the ballots of Albert Johnson, Malte Johnson, John B. Martin, William Russell, Roger Ryan, Adelbert Webb, Bert Thomas, Joseph Stadalius (challenged envelope i In its exceptions the Employer states that its name is not Mattison Machine Manu- facturing Co. as it has appeared in other formal papers , but Mattison Machine Works, i Unpublished. 120 NLRB No. 3. MATTISON MACHINE WORKS 59 marked Hoefle),1 Alvin Rose, and Philip Mattison. However, as these 10 challenges cannot, in view of our determinations set forth below with respect to other challenges, affect the results. of the election we shall not order that they be opened and counted. The Employer, however, filed exceptions and objections to the Regional Director's report in which it requests the Board to set aside the election on the basis of its objections and to direct a new election. It also excepts to the Regional Director's sustaining 8 of the 18 challenges. 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 Bean and Fanning]. The Employer's Objections 1. In its exceptions the Employer first contends that the election should be set aside because the ballots used in the election were addressed to the employees of "Mattison Machine Manufacturing Co." and not "Mattison Machine Works," the Employer's correct corporate name. This error as to the Employer's name apparently resulted from the Petitioner's misstating that name in its petition which error has been carried through in all the formal papers in this proceeding up to the instant decision. The Employer contends that it brought this error to the attention of Board agents. It did not, however, make a formal motion at any stage of this proceeding to correct the error. In any event, there is no contention and no evidence in the record that either the Employer or the employees involved were in any way con- fused by the misnomer of the Employer in this proceeding. The Employer has participated fully in all stages of this proceeding and the election was held on the Employer's premises; 317 of approxi- mately 342 employees voted. It is clear that the employees knew that they were voting on whether they desired the Petitioner to repre- sent them for the purpose of bargaining with their Employer, not- withstanding the slight misnomer of their Employer on the ballot. Therefore, contrary to the view of the Employer, it is obligated under the Act to recognize the majority vote of its employees 4 Accord- ingly, we find that the mistake here under consideration was at most a nonprejudicial error and the objection is, therefore, overruled.' 2. The second matter dealt with in the Employer's exceptions deals with the Regional Director's recommendations that objections Nos. 1 8 Stadallus' challenged ballot envelope inadvertently had Hoefle's name written upon it. None of the parties took exception to the Regional Director's determination on this point. At any rate, as there is no exception to overruling this challenge and as no one contends Hoefle was ineligible to vote, this mistake of the Board agent is at most a nonprejudicial error. 4 The Elm City Broadcasting Corporation, 116 NLRB 1670, 1673. 5 See, for example, Dixie Dairies Division of the Borden Company, 104 NLRB 1031. 1,60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through 4 be overruled. These objections, like objection No. 5 dealt with below, concern the conduct of a Board representative in investi- gating challenges. In these objections the Employer alleges that the Board representative, in the time spent at the plant investigating the challenges, talked to only 8 of the 18 challenged voters, spent most of her time interviewing employees whose votes had not been challenged, told 1 challenged voter that he did the same work as a salesman who did not work for the Employer, and gave priority to investigating certain unfair labor practices charges involving employees of the Employer. The Regional Director considered these objections at length and concluded that they were without merit. The Employer in its exceptions insists that the Board representative in her investi- gation of challenged ballots solicited only information she desired and for the purpose of aiding the Union. It further characterizes the Regional Director's report as "whitewashing" the errors of both the Regional Director himself and the Board representative investigating challenges. Such a charge, along with many others of similar nature in the exceptions, is serious. However, the Employer offers no evi- dence of consequence to support such contentions and we find, there- fore, that they are unwarranted. The Employer also contends that the Regional Director adduced no facts in support of his recommenda- tion that objections Nos. 1 through 4 be overruled. The burden is, however, on the Employer to submit evidence in support of its objec- tions and exceptions.' We find that it has failed to do so and, in accord with the Regional Director's recommendations, overrule these objections. 3. In objection No. 5 the Employer contends that the Board repre- sentative submitted to it an incorrect list of voters whose ballots were challenged. However, it is not disputed that 16 of the 18 challenged voters' names appeared on the list. Furthermore, the Employer in its exceptions shows that it was aware of the errors that appeared and in fact helped in correcting such errors. It fails to show, however, in what way, if any, it was prejudiced by receiving the erroneous list which was later corrected, and on the record here we cannot find that any such prejudice occurred. Accordingly, we find that objection No. 5 is without merit and it is, thus, overruled. 4. In objection No. 6, the Employer contends that the Board repre- sentative who conducted the election refused to let two eligible em- ployees-Wallunas and Wright-vote. The Board representative and Petitioner's observer contend that Wallunas and Wright were not prohibited from voting but only told they were ineligible. The Board representative further states that he informed the two of their right to cast a challenged ballot. The Employer's observers maintain that 6 Eastern Metal Products Corporation, 116 NLRB 1382, 1384; Adler Metal Products Corporation, 114 NLRB 170, 171; N. B Liebman & Company, Inc., 112 NLRB 88. MATTISON MACHINE WORKS 61 the Board agent did tell Wallunas and Wright that they could not vote and that he did not inform Wright that he could cast a chal- lenged ballot. However, the Employer's observers, Myer and Gilbert, made no attempt apparently to protect the rights of the two employees to cast challenged ballots, which right the Employer now contends was denied them. Furthermore, the Employer's observers, including Myer and Gilbert, signed the certification on conduct of election in which they certified that the balloting was fairly conducted and that all eligible voters were given an opportunity to vote. However, we need not decide this conflict in testimony, for assuming, arguendo, that these two employees were denied an opportunity to vote, their votes would not have been sufficient in number to affect the results of the election, as hereinafter set forth. Accordingly, we find objection No. 6 to be without merit and it is hereby overruled.' In summary, then, we find that the Employer's objections are with- out merit, and in accord with the Regional Director's recommen- dation overrule them in their entirety. The Challenges The Regional Director recommended that the challenges to the ballots of Williams, Sundquist, Joseph Ryan, and F. C. Reecher be sustained on the ground that these employees were supervisors. These employees were challenged by the Board agent because their names had been stricken by the Employer from the eligibility list which it submitted on the ground that these persons were supervisors. Williams, Sundquist, and Ryan attend foreman meetings, are con- sidered by employees under them to be foremen, assign work to such employees, and have been held out by the Employer to be foremen.' They have given time off to employees under them, and Williams and Sundquist have effectively recommended raises for such employees. In its exceptions, the Employer merely controverts in general terms the conclusions reached by the Regional Director with respect to the supervisory authority of these three employees or questions whether the actions found by the Regional Director to constitute the exercise of supervisory authority were in fact supervisory in nature. It has not in its exceptions presented evidence refuting the factual con- clusions of the Regional Director. Under such circumstances, we find in agreement with the Regional Director that Williams, Sund- quist, and Joseph Ryan are supervisors and accordingly sustain the challenges to their ballots. As for Reecher, the Regional Director found that he has effectively recommended pay increases, responsibly assigned work to, and re- sponsibly directed the work of, employees under him, and has attended 7 The Union Switch c€ Signal Company, 76 NLRB 205 , 211-212. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman meetings. The Employer in its exceptions concedes that Reecher was at one time a supervisor but claims that his supervisory authority was taken from him. There is nothing in the Regional Director's report to indicate Reecher did not exercise supervisory authority.at all times here material, and though the Employer has submitted, affidavits showing that instructions were issued that Reecher be relieved of his supervisory duties, there is no evidence when, if ever, Reecher was in fact relieved of such duties, short of the date of his retirement some' 3 months after the election. In view .of. the foregoing we ' fmd Reecher was a supervisor and, therefore, sustain the challenge to his ballot. The .Regional Director recommended that the challenge to L. Kroll's ballot be sustained on the ground that Kroll, an out-of-plant serviceman, does not have such community of interest with the regular production and maintenance employees to warrant his inclusion in the unit. The Employer merely takes issue with the Regional Di- rector's conclusion with respect'to Kroll. The record shows Kroll lives some 225 miles away from the plant, spends most of his time working away from the plant servicing the Employer's machine tools sold to various customers, of necessity travels extensively, and re- turns to the plant only to get repair parts or do repair work which' cannot be done outside. Unlike other employees Kroll does not have a clock number, does not punch a clock, and is paid on a salary basis. In view of the foregoing,"we sustain the challenge to Kroll's ballot in accordance with the conclusion and recommendation of the Regional Director 8 The Regional, Director recommended that the ballot of P. Kruse be sustained on the ground that he is an office employee. Kruse is a mail clerk. In the morning he picks up mail in the main office for distribution to various company, offices and sorts the mail in the multigr'aph room adjacent to the main office. He also delivers and picks up mail in the production areas of the plant. Kruse is super- vised by the comptroller whose office is in the Employer's main office. In view of the foregoing, we agree with the Regional Director that Kruse is an office' employee,9 and accordingly sustain the challenge to his ballot. As we have sustained 6 of the challenges, the remaining challenged ballots (2 contested by 'the Employer, 10 overruled) and the votes of Wallunas and Wright could not affect the results of the election.lo Consequently, as we have overruled the Employer's objections and as 8 See Morris Hirschman & Co., Inc., 111 NLRB 776, 780; Foremost Dairies, Inc, 80 NLRB 764, 766. , 0 Heintz Man ifactairing 'Company, 100 NLRB 1521, 1524 10 Assuming that all these challenged ballots had been cast against the Petitioner and :assuming further that Wallunas and Wright would have voted against the Petitioner, the final tally would still show 157 ballots for Petitioner and only 155 against. A ALLIED CHEMICAL & DYE CORPORATION 63 the Petitioner has received a majority of votes cast in the election, we shall certify the Petitioner as representative of the employees in the appropriate unit. [The Board certified United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-AFL-CIO, as the designated collective-bargaining representative of the employees in the appro- priate unit which includes all production and maintenance employees and plant clerical employees at the Employer's Rockford, Illinois, plant; but excludes office clerical employees , professional employees, guards, and supervisors as defined in the Act.] Allied Chemical & Dye Corporation , Nitrogen Division and Oil, Chemical & Atomic Workers International Union, AFL-CIO, Petitioner. Case No. 39-RC-1186. March 6, 1958 -DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before C. L. Stephens, 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. 1 On July 24 , 1957, prior to the instant hearing , the Regional Director granted motions to intervene filed by ( 1) InternationalChemical Workers Union , AFL-CIO, hereinafter called Chemidal Workers , and (2 ) Pipefitteis Local 195 , United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO, and Local 390, International Brotherhood of Electrical Workers, AFL- CIO, hereinafter referred to collectively as the Joint Intervenor Both motions were sup- ported by a card showing . At the hearing , the other parties objected to the intervention of the Joint Intervenor on the ground that: ( a) Local 390 was not then in compliance with the filing requirements of Section 9 (g) of the Act; (b) it did not appear whether the authorization cards supporting the intervention of the Joint Intervenor, ran to both unions jointly or to each union separately ; ( c) the unit sought by the Joint Intervenor was inappropriate ; and (d ) the-motion to intervene does not show that both unions were acting jointly rather than separately. As to ( a) the question raised as to Local 390 's compliance Is not litigable in this pro- ceeding but is a matter for administrative determination by the Board . Standard Cigar Company, 117 NLRB 852. We have administratively determined that, although it did not, until after the hearing herein, submit to the Regional Diiector the notice from the Department of Labor that it had complied with the filing requirements of Section 9 (g), Local 390 was; nevertheless , in compliance at all material tines As to (b), we find no merit therein for the reasons stated in The Sttckless Coiporattion, 115 NLRB 979, 980 As to ( c), the fact ,that the unit sought by an intervenor is alleged to be inappropriate is no reason to bar its participation in a representation hearing The appropriateness of such unit is a matter to be determined solely by the Board upon all the evidence As to (d), this contention appears to be based on the fact that at one point the written motion to intervene filed by Local 390 and Local 195 refers to the "intervenor ," rather than "Intervenors " However, we are satisfied that the motion read as a whole manifests an intent to intervene jointly. - The hearing officer referred to the Board Petitioner's motion to deny intervention to the Joint Intervenor because the unit sought by it was inappropriate In view of our findings below on the unit issue, this motion is denied 120 NLRB No. 4.