Armour and Co.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Armour and Company and United Packinghouse Workers of America, AFL-CIO, Petitioner. Case No. 18-RC-3266. April21, 1958 SUPPLEMENTAL DECISION, CERTIFICATION OF RE- SULTS OF ELECTION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Elections,' dated Novem- ber 27, 1957, elections by secret ballot were conducted on December 20, 1957, under the direction and supervision of the Regional Di- rector for the Eighteenth Region, among the employees in the unit and voting group found appropriate in the above-mentioned decision. Thereafter, a tally of ballots was furnished the parties showing that of approximately 24 eligible voters in the office clerical unit, 24 cast valid ballots, of which 9 were for the Petitioner and 15 against the Petitioner. On December 27, 1957, the Petitioner filed timely objections to conduct affecting the results of the election in the office clerical voting unit. The tally of ballots also showed that of approxi- mately 9 eligible voters in the plant clerical and residual voting group, 9 cast valid ballots, of which 4 were for the Petitioner, 3 were against the Petitioner, and 2 were challenged. The challenged bal- lots were sufficient in number to affect the results of the election in the plant clerical and residual voting group. In accordance with the Board's Rules and Regulations, the Re- gional Director conducted an investigation of Petitioner's objections and the issues raised by the challenged ballots, and on February 5, 1958, issued his report and recommendations on objections and chal- lenges, a copy of which is attached hereto. As to the challenged bal- lots in the plant clerical and residual voting group, the Regional Director recommended that the challenges to the ballots of James Clark and William Byram be sustained, and a certification of results of election be issued, indicating that this voting group be included in the existing production and maintenance unit. As to Petitioner's objections regarding conduct affecting the results of the election in the office clerical unit, the Regional Director recommended that ob- jection 1 be overruled, that objection 2 be sustained, and that the election be set aside and a new election be ordered by the Board. Thereafter, the Employer filed timely exceptions to the Regional Director's recommendation that objection 2 be sustained. No other exceptions were filed. 1119 NLRB 623. 120 NLRB No. 81. ARMOUR AND COMPANY 523 The Board 2 has considered the Petitioner's objections, the Re- gional Director's report, the Employer's exceptions, and the entire record 3 in this case. We find that the Employer's exceptions do not raise material or substantial issues respecting the results of the elec- tion. We therefore adopt the recommendations of the Regional Di- rector and hereby sustain Petitioner's objection 2 that a new election be held. As no exceptions were filed to the Regional Director's rec- ommendations respecting the challenges and the remaining objection, we hereby adopt them pro f orima. [The Board certified United Packinghouse Workers of America, AFL-CIO, as the collective-bargaining representative of the em- ployees in the plant clerical and residual voting group including the existing production and maintenance unit.] [The Board set aside the election held on December 20, 1957.] [Text of Direction of Second Election omitted from publication.] 2 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 request tor oral argument is hereby denied, as the objections, excep- tions, and the Regional Director's Repoi t, in our opinion, adequately reflect the issues and the positions of the parties. REPORT AND RECOMMENDATIONS ON OBJECTIONS AND CHALLENGES On December 20, 1957, Regional Director conducted elections by secret ballot in the above-captioned case pursuant to Decision and Direction of Elections issued on November 27, 1957. The results of the elections are set forth in the tallies of ballots issued December 20, 1957.1 Challenged ballots are sufficient in number to affect the results of the election in voting group 2, the plant clerical and residual group. On December 27, 1957, the United Packinghouse Workers of America, AFL- CIO, filed timely objections to the election in voting group 1, the office clerical group, a copy of which was duly served upon the Employer. Acting pursuant to Section 102.61 of the Rules and Regulations of the National Labor Relations Board, Series 6 as amended, the Regional Director has investigated the issues raised by the objections and challenges and hereby reports as follows: 1 Voting Group 1 (office clerical group) : Approximate number of eligible voters_____________________________________ Void ballots --------------------------------------------------- Votes cast for Petitioner_________________________________________________ Votes cast against Petitioner______________________________________________ Valid votes counted------------------------------------------------------ Challenged ballots --------------------------------------------- Valid votes counted plus challenged ballots_________________________________ Voting Group 2 (plant clei ical and residual group) : Approximate number of eligible voters_____________________________________ Void ballots ----------------------------------------------------------- Votes cast for Petitioner_________________________________________________ Votes cast against Petitioner_____________________________________________ Valid votes counted------------------------------------------------------ Challenged ballots ------------------------------------------------------ Valid votes counted plus challenged ballots_________________________________ 24 0 9 15 24 0 24 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Challenged Ballots-Plant Clericals James Clark: The ballot cast by James Clark was challenged by the Union on the ground that he was not employed in the unit found appropriate by the Board on the date determining eligibility. The pay-roll period determining eligibility was November 23, 1957. The Company admits that prior to December 9, 1957, Clark was employed as a junior livestock buyer and weightmaster, a position excluded from the appropriate unit However, the Company maintains that since Clark was permanently transferred to a position within the unit prior to the election, he should be permitted to vote unchallenged. In accordance with long-established election rules, eligible voters are those em- ployees in the appropriate unit during the pay-roll period determining eligibility. William Byram: The ballot cast by William Byram was challenged by the Com- pany on the ground that he had been permanently laid off December 7, 1957. The Company maintains that on December 5, E. E. Hogoboom, assistant plant manager, advised Byram that he would be laid off on December 7; further, that there were no prospects for recall, but if something developed, Byram would be kept in mind. Byram has not been recalled or rehired to date. Byram states he was informed the layoff was necessitated by economic conditions, and that if business improved at some future date, he might be recalled but should not count on reemployment. Upon termination, Byram's contributions to the Company's pension fund were refunded and all other fringe benefits were terminated, Upon consideration of the evidence, which is in no material respect conflicting, there is no basis for concluding that the termination was of a temporary nature or that there existed a reasonable expectancy of reemploying Byram. Objections The Petitioner has addressed the objections to conduct affecting the election among employees in the office clerical group. In substance the objections allege: 1. Prior to holding the election, the Employer discharged Robert Minch and William Byram, with the intention and effect of intimidating employees and prevent- ing a free expression of employees at the election. 2. On December 18, 1957, 2 days before the election, the Employer called all employees in small groups into its office, where opposition to the Union was expressed, and that this action prevented a free expression of the employees in the election. Objection No. I • Investigation discloses no evidence to support the allegation that the termination of Minch and Byram was intended to or did influence or interfere with the employees' freedom of choice in the election Objection No. 2: Investigation reveals that on December 18, 1957, 2 days before the election, employees in the unit were called in small groups into the office of Mr. Mullaney, controller and office supervisor, and were there addressed by Mr. Sailer, plant superintendent. During the course of the meetings, Mr. Sailer reviewed the present personnel policies and fringe benefits accorded Armour employees. He spoke of possible abandonment of the present policy of treating employees on the basis of merit and substituting seniority, if the Union was successful in the election, also, that employee- grievances or complaints would have to be taken up through the Union and could not be handled by the employees individually. In addition, Mr. Sailer indicated to some employees that in the event any of the employees were laid off, other employers would or might be reluctant to employ them because they were previously employed in a union plant. To others he indicated that employers usually checked with past employers and usually preferred to employ nonunion employees. Mr. Sailer did not speak from a prepared text, and, while employees were urged to vote, they were never directly asked to reject the Union. These meetings lasted from 15 minutes to one-half hour. There is no evidence that any statement exceeded the bounds of permissive expression. The Company maintains the controller's office is part of the regular working area of the office force. However, 'here i, no d-ute ,bout the fact that tie office is fully enclosed and that it is occupied only by Mr. Mullaney. In addition, the Company argues that Mr. Sailer is not the supervisor of employees in the unit, that employees were not urged to reiect the Union, and that the meetings were not com- pulsory. Mr. Sailer, while not the employees' immediate supervisor, is, nevertheless, the Company's plant superintendent, and occupies an office immediately adjacent to the controller and office manager. There is no evidence that employees were compelled to attend these meetings. However, they were asked to attend, and it is EDMONT MANUFACTURING COMPANY 525 significant that all employees in the unit except one attended the group meetings, and this individual was talked to by the assistant general manager. The employees' immediate supervisor was present during each of the meetings and to a limited extent participated in the discussions . It is immaterial that the remarks were non- coercive and that attendance was not compulsory. CONCLUSIONS AND RECOMMENDATIONS The Regional Director concludes that the challenges to ballots cast by James Clark and William Byram should be sustained on the ground that Clark was not an employee in the unit during the payroll period determining eligibility , and Byram was permanently terminated and thus not an employee on the election date. No charges alleging discriminatory discharge of those individuals have been filed. It is therefore recommended that the challenges be sustained , and a certificate of results of election be issued, indicating that the voting group consisting of store- room clerk, plant clerk, industrial engineering checkers , and carcass graders will be deemed included in the existing production and maintenance unit. Objections The Regional Director concludes from the undisputed evidence that 2 days prior to the election, group meetings were held with employees separately and away from their normal work stations. It is also concluded that whether or not coercive, Mr. Sailer's remarks concerning merit versus seniority as a basis for rewarding employees and possible employment difficulties for employees from union plants were reason- ably calculated to interfere with the free choice of employees in the forthcoming election. In accordance with established Board precedent ,2 it is recommended that the election conducted among employees in the office clerical unit be set aside and a new election directed. 2 Peoples Drug Stores, Inc., 119 NLRB 634. Edmont Manufacturing Company and United Rubber, Cork, Lino- leum & Plastic Workers of America, AFL-CIO. Case No. 8-CA- 1253. April 22,1958 DECISION AND ORDER On October 29, 1957, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, and recommending that it cease and desist therefrom and take cer' a=n affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof. 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 Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The 120 NLRB No. 80.