The Kilborn-Sauer Co.

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Railway Company ,27 the Board concluded that where "in almost all instances" 2a disciplinary action "seldom " exceeded 10 days, "a 10-day suspension would have been fair and reasonable and that suspension beyond that period was discrimina- tory. " Back pay was there directed for the period of suspension beyond 1U days. I find that between January 27, 1951, and April 2, 1955, Winzelberg would have earned from the Respondent R. K. $996.36, $1 ,312.87, and $ 13,879.88, for a total of $16,189.11 . His interim earnings were $45, $1,294 , $ 1,527, and $585 , for a total of $3,451. I further find that the net back pay due Winzelberg through April 2, 1955, is $12,738.11. CONCLUSIONS Upon the foregoing findings and computations , I conclude: 1. That the total net back pay due Max Winzelberg up to and including April 2, 1955, is $12,738.11. 2. That Max Winzelberg is entitled to immediate reinstatement as a route salesman. of a detailed formula to the compliance stage of the proceeding." Thomason Plywood Corporation, 109 NLRB 898 . Cf. also Bigelow v. RKO Radio Pictures , Inc., 327 U. S. 251,263-266. '1110 NLRB 1963. as The quoted portions Indicate the indefiniteness which the Board there faced. The Kilborn-Sauer Company and United Steelworkers of America, AFL-CIO, Petitioner. Case No. 2-RC-8985. May 6,1958 DECISION AND CERTIFICATION OF RESULTS OF ELECTION On August 9, 1957, 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 Second Region, among the employees of the Employer in the unit hereinafter found appropriate. Following the election a tally of ballots was furnished the parties which showed that of the approximately 62 eligible voters, 22 cast valid ballots for the Petitioner, 25 cast valid ballots against the Petitioner, 1 cast a void ballot, and 11 cast ballots which were challenged. Thereafter Petitioner timely filed objections to the election. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director caused an investigation of both the objections and the challenges to be conducted and on January 27, 1958, issued a report on objections and challenged ballots in which he found that the objections were without merit and recommended that they be overruled. He also found that some of the challenges should be overruled and the remainder of the challenges sustained. How- ever, as the ballots, the challenges to which he found should be over- ruled, were insufficient in number to affect the result of the election, he further recommended that the Board issue a certification of results of the election. The Petitioner timely filed exceptions to the Regional Director's report. 120 NLRB No. 46. THE KILBORN-SAUER COMPANY 805 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has considered the Regional Director's report and the Petitioner's exceptions thereto, and upon the entire record in this case makes the following findings : (1) The Employer is engaged in commerce within the meaning of the Act. (2) The Petitioner is a labor organization claiming to represent employees 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) In accordance with the stipulation of the parties, the following employees of the Employer at its warehouse at 1580 Post Road, Fair- field, Connecticut, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees, excluding office, clerical, supervisory, and professional employees and guards as defined in the Act. (5) Shortly before the election, the Employer mailed to its Puerto Rican employees a communication in Spanish urging them to vote against any labor organization. The communication was printed on the Employer's stationery and, literally translated, informed the re- cipient that, "This is how you should vote in favor of yourself and against any workers union." Beneath this message appeared a marked box under the word "NO." Apart from the "NO" box, the communi- cation bore no resemblances to the official ballot used by the Board in representation elections. The Regional Director recommended that the Petitioner's objection based upon this incident be dismissed, to which Petitioner has excepted. As the Employer's communication contained no more than the Em- ployer's suggestion to its employees to vote against the union and in no way tended to suggest or imply Board approval of the material contained therein, we find the communication not to have exceeded the limits of permissible electioneering. Phelps-Dodge Copper Products Corporation, 111 NLRB 950. Because he found them to have been permanently laid off before the election, the Regional Director recommended that the Employer's challenge to the ballots of employees Faustino Silva Gonzales, T. Alman Ramos, Antonio Deido Roman, Constantino Sansone, and Angel Luis Morales Torres be sustained. Petitioner excepts to this recommendation on the ground that three of these employees had 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been recalled after a previous layoff and that the Employer asks its employees to inform their friends when the Employer desires addi- tional employees. Contrary to Petitioner's contentions, we do not consider these facts inconsistent with the uncontroverted evidence upon which the Regional Director relied in finding that the em- ployees in question were permanently laid off before the election. Accordingly, we shall sustain the challenges to the ballots cast by the above-named employees. The Regional Director recommended that only two of the remaining challenges be overruled. As no exceptions have been filed to these recommendations, we hereby adopt his conclusions as to these recom- mendations. As we have overruled Petitioner's objections to the election and as the number of challenges we have overruled is insuf- ficient to affect the results of the election, we shall certify the results of the election in which Petitioner failed to secure a majority of the valid ballots cast. [The Board certified that a majority of the valid ballots was not cast for United Steelworkers of America, AFL-CIO, and that said labor organization is not the exclusive representative of the employees of the Employer in the unit herein found appropriate.] Georgia Kraft Company and Office Employees International Union, AFL-CIO, Petitioner. Case No. 10-RC-4008. May 6,1958 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 David L. Treztse, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed, in part for the reasons discussed hereinafter. 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 organization involved claims to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 'International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Locals 636 and 643, who weie permitted to intervene at the hearing, currently iepiesent it unit of Employer's production and maintenance employees , from which unit are ex- chided the office and plant clerical employees whom Petitioner seeks to represent Inter- venors have no desire to participate in the election directed herein 120 NLRB No. 113.