George C. Rothwell, Inc.

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence to the law was made at the hearing, that section was not cited by counsel, and opposing counsel was not given an opportunity to consider or be heard on it although I directed, and it was clear, that any portion relied on should be pointed out at that time. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section II, above , occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. N. THE REMEDY Having found that the Union has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist there- from and take certain affirmative action to effectuate the policies of the Act. It has been found that the Union has violated Section 8 (b) (2) and (1) (A) of the Act by requesting and demanding that the Company discharge Meyer and Koob because they had not paid dues to , and were not members of, the Union. I shall therefore recommend that the Union cease and desist from making such re- quests and demands. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Public Utility Construction and Gas Appliance Workers of the State of New Jersey, Local 274, of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By attempting to cause Public Service Electric and Gas Company (Gas Dis- tribution Department ) to discriminate in regard to hire and tenure of employment in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 3. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] George C. Rothwell, Inc. and Chauffeurs, Warehousemen & Help- ers Union, Local 876, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Peti- tioner. Case No. 5-RC-2270. April 9,1958' DECISION AND DIRECTION On August 26, 1957, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction of the Regional Director for the Fifth Region among the employees in the agreed appropriate unit. Following the election, the Regional Director served on the parties a tally of ballots which showed that of approximately 27 eligible voters, 11 cast ballots for the Petitioner, 8 cast ballots against the Petitioner, and 8 ballots were challenged. 120 NLRB No. 55. GEORGE C. ROTHWELL, INC. 365 As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director caused an investigation to be conducted in accordance with the Rules and Regulations of the Board. On February 4, 1958, the Regional Director issued and served on the parties his report on challenges, recommended that the chal- lenges to the ballots of Clarence Reed, Leonard Bausch, and Allen Everett be overruled; and that the challenges to the ballots of Her- man Wilhoit, Glendon Durham, James Carter, and Roger Kelsey be sustained; and that the challenge to the ballot of William Givens remain unresolved at this time. Thereafter, the Employer alone filed exception to the Regional Director's recommendation that the chal- lenge to the ballot of Roger Kelsey be sustained. 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 Rodgers and Jenkins]. The Board has considered the Regional Director's report and the Employer's exception thereto and upon the entire record in this case finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner is a labor organization within the meaning of the Act, claiming to represent certain 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 agreement with the stipulation of the parties, the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All local and over-the-road truckdrivers and helpers employed by the Employer at its store, mill, and elevators located at Smyrna and Frederica, Delaware, but excluding all carpenters, carpenters' helpers, mill operators, mill operators' helpers, office clerical employees, guards, and supervisors as defined in the Act. 5. In the absence of any exception thereto, we adopt the Regional Director's recommendation that the Petitioner's challenges to the bal- lots of Clarence Reed, Leonard Bausch, and Allen Everett be over- ruled and that their ballots be opened and counted. The Petitioner agreed that the Employer's challenges to the bal- lots of Herman Wilhoit, Glendon K. Durham, and James Carter be sustained and their ballots not be opened and counted. The Regional Director recommended that,, in view of the agreement of the parties, the challenges to these ballots be sustained. Under these circum- stances, we hereby adopt the Regional Director's recommendation. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer excepts to the Regional Director's recommendation that the Petitioner's challenge to the ballot of Roger Kelsey be sus- tained. The Employer contends that Kelsey, grandson of the Em- ployer's president, and a 17-year-old high school student, who has worked for the past 5 summers and sporadically during school vaca- tions and Saturdays, has a reasonable expectancy of forthcoming em- ployment. The record indicates that in the summertime, Kelsey helps load and unload trucks; during the vacations, he works at the grain elevator when the Employer is shorthanded. Kelsey is covered by the Employer's Blue Cross policy, but he does not receive any paid vaca- tions as do other employees. Although Kelsey believes that he has, a reasonable expectancy of full-time employment, upon analysis of the entire record, we agree with the Regional Director that Kelsey is a temporary or casual employee, and we therefore adopt his recom- mendation that the challenge to his ballot be sustained.' The Employer challenged the ballot of William Givens, who, the Petitioner alleged, had been discriminatorily discharged. The Peti- tioner subsequently filed an unfair labor practice charge (5-CA-1194) to this effect. The Regional Director made no recommendation as to the disposition of the ballot at this time. We will not now rule on Givens' ballot. If it should appear that Givens' ballot is determina- tive of the results of the election, we will make a final disposition of the matter after the outcome of the unfair labor practice proceeding.2 [The Board directed that the Regional Director for the Fifth Region shall, within ten (10) days from the date of this Direction, open and count the ballots of Clarence Reed, Leonard Rausch, and Allen Everett, and serve upon the parties a supplemental tally of ballots.] 'Brown-Forman Distillers Corporation, 118 NLRB 454; Westinghouse Air Brake Com- pany, 119 NLRB 1391. 2 R & R News Co , 92 NLRB 1134, 1135, footnote 2; Old King Cole Display, Inc., 116 NLRB 1251, 1253. Olson Rug Company and Textile Workers Union of America, AFL-CIO. Case No. 13-CA-P2587. April 10, 1958 ° DECISION AND ORDER On November 19, 1957, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- 120 NLRB No. 60.