U.S. Radium Corp.

468 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD executed a 1-year contract covering the employees in the proposed unit, the termination date: of which. was, October 22, 1958. The Em- ployer-filed the instant; petition on,August.2,9, 19.58. It is clear,, there- fore,, that- -the*- petition' was : filed within the 60-day period imme- diately preceding the expiration rate of the contract: The Board has' decided that, the, rule in Deluxe Metal Furniture Company, 121 NLRB 995, establishing a 60-day insulated period during which petitions will not, be, entertained applies to all petitions., As the instant petition was filed during such period, we. find that it is untimely. The motion to dismiss on this ground is therefore granted. `• :[The Board dismissed the petit'i'on.] MEMBER BE AN took no part in the consideration of the above De- cision and Order. U.S. Radium Corporation and Oil, Chemical and Atomic Work- ers International Union , AFL-CIO, Petitioner. Case No. 4-RC- 3230,., December 17,.-1958 SUPPLEMENTAL DECISION AND DIRECTION On April 18, 1957, pursuant to a Decision and Direction . issued by' the Board on March 27, 1957, in the above proceeding, an elec- tion by secret ballot was conducted under the direction and super- vision of the Regional Director for the Fourth Region among'the employees in the unit found appropriate. The tally of ballots showed that of approximately 204,eligible, voters, 203 cast ballots, of which 88 were for the Petitioner, 100 for Independent Radium Workers, and 15 against participating labor organizations. Thereafter, the Petitioner' filed 'objections to the conduct of the election which the Acting Regional Director. recommended over- ruling in his report filed June 25,- 1957. He also recommended that a runoff election-be held because no choice on the ballot had received a majority vote. No exceptions' having been filed to the report, the Board in its Supplemental Decision. and Direction of July 10, 1957,2 directed that a runoff election` be held with the Petitioner and the Independent Union on the ballot. On July 30, 1957, the runoff elec- tion was conducted by secret ballot. This time the tally of ballots showed that the approximate number of eligible voters was 203, that 187 valid votes were 'counted of which 94 were for the Peti-' tioner and 93 for the Independent, and that in addition 5-ballots were challenged. 1 Unpublished. 2 Unpublished. .122 NLRB No. 76. U.S. RADIUM CORPORATION. 469 The Employer : thereafter filed timely, ;objections to the conduct of the. election. After an investigation, the Regional,. Director, on November 13, 1957,. filed his report and recommendations on chal- lenged ballots and objections, recommending that the objections-be dismissed, that the challenge to; the ballot of Donald' Kelchner be overruled ' and his vote counted, and that 'the four remaining chal- lenges-be sustained'. No exceptions were :filed to .the recommendation to sustain two of the. four. challenges :.those of Josephine Houck and Sheldon Cope. However, the Employer filed exceptions to, and requested a hearing concerning, the recommendation to sustain the challenges to the ballots of Martha Lynn and John A: Hauze, ,as well as the recommendation to dismiss the objections. The Petitioner filed -exceptions to the recommendations to overrule the challenge concerning the Kelchner ballot. On December 6, 1957, the, Board ordered that a hearing be held on the challenges. A notice of hearing on challenged ballots was duly issued by the Regional Director on December d9, 1957,. and on-January '10, 1958, the Employer filed a motion by which it sought to broaden the scope of the hearing to, include its 'objections. On .January 17, 1958, the ' Board issued an order . specifically limiting - the. hearing to. the issues raised by the three challenges which were the basis' of excep- tions, :reserving opinion upon the objections until ,resolution of the challenges. The. hearing. on . challenges was held . on : various dates between January 28' aid March 28, 1958, before Leonard Leventhal, -hearing officer. All parties appeared and participated. ' All declined ; to argue orally.on the record. The Petitioner and" the Employer thereafter filed briefs with the hearing officer. . . . _ . . - On. August 13, 1958, the'hearing officer issued his',report on chal= lenged ballots in which he recommended sustaining 'the challenges to the votes of Hauze and Kelchner, and overruling. the challenge to the vote of Lynn. The Employer has now filed exceptions con- cerning the recommendation as to Hauze and Kelchner, 'and in addi- tion. has requested oral argument before'the Board. In urging oral argument the Employer refers to the diverse rulings 'of' the Regional Director in his - report of November 13 and those. of. the' hearing officer in his August 13 report, after hearing. That' the two-officers of the Board, reporting at different stages of the. proceeding, should have differed in their recommendations as to two of the challenged ballots-those -of Kelchner and Lynn-cannot be said to indicate the necessity. for oral argument: 'We deny the Employer's request inasmuch as the record . and the Employer's exceptions . and, brief; in our opinion, adequately' present the issues and the :.positions of the parties. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Fan- ning]. The Board has reviewed the rulings made by the hearing officer and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the hearing officer's re- port, the exceptions thereto, the supporting brief, and the entire record in this case. For the reasons outlined. below we agree with the hearing officer's recommendations as to Kelchner and Lynn, but not as to Hauze. The challenge to the ballot of John Hauze: The hearing officer found that Hauze, who was admittedly eligible to vote in the first election, was shortly thereafter transferred to a position where his capacity as management trainee made him ineligible to vote in the runoff election. Hauze's transfer occurred on May 10, 1957, to the production con- trol office of the dial process department. There he was in training, on a year's probationary basis, for the position of John Funk who, on June 1, transferred to the sales department. Funk had spent 85 percent of his time in estimating and planning work for the depart- ment and 15 percent in production control duties. In addition he directed the work of the only other employee in the production control office, a clerical employee, in her day-to-day activities;' and could assign her to other departments temporarily. Funk's immedi- ate supervisor was Slatt, the manager of the dial process depart- ment, for whom the clerical employee does secretarial work. Funk is referred to in the record as "Production Manager" and "Head- Planning and Estimating Section." He did not vote in the first elec- tion, the parties apparently having agreed that he was ineligible. The Employer has other departments having production managers who supervise planners and estimaters, instead of combining the functions of planning and estimating with production control as did Funk. The hearing officer found that Funk was a supervisor because his job "included the authority to responsibly direct the clerical in the production control office" and because the references to Funk as production manager and section head were corroborative of supervisory status. Hauze, he found, was not exercising the supervisory authority formerly exercised by Funk over the clerical employee, nor perform- ing some of the production control duties which had shifted to Slatt during Hauze's probationary period. However, it appears that Hauze was to assume these responsibilities upon successful comple- U.S. RADIUM CORPORATION 471 tion of his probation. On these facts the hearing officer concluded that Hauze was not training for a future supervisory position, in which circumstances the Board has found that present duties deter- mine eligibility to vote,3 but was occupying an available position on a probationary basis, and that his interests were therefore akin to those of a supervisor, whose duties he would assume if he suc- cessfully completed his probation.' We would agree with the latter conclusion if Hauze had been exercising supervisory powers while serving his probation.5 But the record clearly shows that Hauze was not so doing. In the circumstances the decisive factors, as set forth in the cases cited, are the probability of becoming a supervisor, and considerations of training and background which tend to em- phasize a distinction in interest between the rank and file employees and the trainee. As Hauze had come from a production job without any special training for the job in question, and as it cannot be said on this record that it was probable that he would be given the job, or-that he would no longer be employed by the Employer unless he was given it, we consider his status distinguishable from those situations in which we have held that supervisory or management trainees were ineligible to vote.6 We shall therefore overrule the challenge to Hauze's ballot. The challenge to the ballot of Martha Lynn: The Petitioner chal- lenged Lynn at the runoff election because her name had not ap- peared ion • the eligibility list,for the first election, in which she had not voted.? At the time of the runoff Lynn was employed in an ad- mitted production capacity, as an opaquer in the photo department. She had originally been hired as - an art trainee but was laid off after the first election and later rehired as an opaquer. The hearing officer found that Lynn should not have been excluded from the list of eligible voters in the first election, hence that her ballot could 3 See Heckett Engineering Co., 117 NLRB 1395, 1398 ; Continental Can Company, Inc., 116 NLRB 1202; United States Rubber Company, 113 NLRB 746 , 749; Brooklyn Borough Gas Company, 110 NLRB 18; Mrs. Tucker's Products, 106 NLRB 533; The Peal Hanu- factyri7}g Company, 80 NLRB 827, 829; Plaster Corporation, 72 NLRB 1341, 1342. See Cherokee' Te&,tile Hills, Inc., 117 NLRB 350, 351; WTOP, Inc., 114 NLRB 1236 and 115 NLRB 758; Diana Shop of Spokane, Inc., 118 NLRB 743. 5 See Burrus Hills, Incorporated, 116 NLRB 384, where a foreman trainee actually "carrying on the job of a supervisor " during his training period was excluded as a supervisor. Compare Cherokee Textile Hills, Inc., supra, where the trainees excluded had had technical training and It was probable that they would be made supervisors after a 15-month probation ; WTOP, Inc., supra, where trainees were recruited because of special background and they did not remain with the Employer after training unless -they were made supervisors ; and Diana Shops, supra, where the exclusion of store manager trainees was based partially upon the temporary nature ( 3 to 6 months ) of their employment at a particular shop, and their consequent lack of common interest with employees in the unit. 7 Concerning eligibility in runoff elections , the Board's Rules and Regulations , Series 7, provide: "Sec. 102.70 ( b) Employees who were eligible to vote in the election and who are employed in an eligible category on the date of the runoff election shall be eligible to vote in the runoff election." 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not, be,. challenged in. the runoff election at , which, time ; she was ,clearly occupying a job within the production, and maintenance unit. The Employer concurs. in this. finding; the, Petitioner has- filed no exceptions.,. We find that- the record amply supports the, finding- of ,the hearing officer that Lynn was not.,a.technical employee at the time of the first election, was properly within the unit because her duties . were akin to those of • production employees, and was . em- ,ployed in, a,.production capacity on the eligibility date for the runoff election.. We therefore adopt the hearing officer's; recommendation that the.challenge to her ballot be overruled.. The challenge to the ballot.o f Donald Kelchner:. The hearing of- ficer, found that Kelchner, who had. been allowed to vote .in ,the first election, was properly challenged as a,, supervisor •in the runoff election. • • . ; . , -^ , • , In, .its brief the Employer contends that Kelchner• actually had no .supervisory; authority until .some months after the runoff election, when he,was put in charge of a third shift started for. the machine shop of the Lackon department. This occurred. about ,December 13, 1957. 'It also. contends that his; assignment duties in the period,bee- tween the two elections : did not require the exercise,- of independent judgment within the meaning of Section 2(1.1). of the Act., On the record before us we do,not agree. Kelchneri who was hired..as an apprentice, machinist, was: reclassi- fied as an; assistant, • foreman, in . the ' Lackon machine shop as, of March 22, 1957, the. day. following the payroll eligibility date for the first election. He- received. a pay, increase, at the time of the pro: 'motion. From then on he reported for work at 6:45, a.m:, 15 minutes .earlier than the.beginning of the first..shift. Donald Schrader,was ,the foreman,and in charge of: the, machine shop., Schrader continued to, report ,for, world. at.6 :45 a.m.,,as he had- been doing,-until May,.3, when he began working from 8 a.m. to 5 p.m. The first- shift- had 12 .' employees, in the , machine shop.' A 'second ` shift, with 7 employees, began'.work at:3:30 in the afternoon.. On this shift Walter Wertz, an, admitted supervisor, was classified as assistant' foreman. Wertz, like Kelchner, also.reported 15 minutes before the.beginning of the shift, was hourly paid, and punched a time clock. Schrader, on-the other hand, punched no time clock and was paid a salary. His hours overlapped the second shift. Testimony for. fhe-,Employor indicates that it considers supervision, in the machine' shop of critical impor- tarice' and that' Schrader's 8 to , 5 workday ' enabled 'him to devote more time to customer problems. As found by. the hearing officer, the ' record, shows .that. from May 3, 1957, on, Kelchner responsibly directed the work of machine 'shop U.S. RADIUM CORPORATION 473 employees regularly for at least the. first 11/4 hours of each day, as well as -for other periods during the day when Schrader was re- quired to be out of the shop. Kelchner's ' duties included assigning the work, providing necessary materials: and. blueprints, and respon- sibility for the flow of work. The record' also shows that he attended meetings of supervisors held by' the Lackon department head, and that the Employer had posted a notice-sometime following Schrader's March 1957 oral announcement to the machine shop em- ployees that Kelchner would be in full, charge in his absence-stating that Kelchner was an assistant foreman in charge of production We find that Kelchner was a supervisor within the meaning of the Act on the eligibility date for the runoff election, and' shall ac- cordingly sustain the challenge to his ballot. We likewise sustain the challenges to the ballots. of Houck and Cope, concerning which there were no exceptions to the Regional Director's recommendation. There remain for. consideration ,the objections, to the conduct of the election filed by the Employer. On the day before the runoff election an individual -organizer for the Petitioner came . inside the plant gate, distributed literature : for the Petitioner, - and did not leave until plant officials ' came out of the administrative ,offices in- tending to eject him. The- Employer 'contends that this conduct by the Petitioner violates the Board's - rules 'concerning electioneering within 24 hours of an election,' and that the very presence of, an organizer on 'company property gave the impression to7 employees that the solicitation was permissive and that the Employer was sup- porting the Petitioner. We agree with the conclusion of the Regional Director that there is no merit in these objections. The Board has expressly reserved to parties the privilege of distributing campaign literature on company premises at any time in the preelection pe- riod'.8 And, as concluded by the Regional Director,-it is unlikely that the employees in this instance would have construed this incident as implying Employer approval of the Petitioner at the time of the runoff election in the light of the Employer's express preference for the Independent at the time of the, original election. In view of the foregoing, we :find that the, Employer's objections do not raise substantial or-material issues affecting the results of the election, and they are hereby overruled. [The. Board directed that the Regional Director for the Fourth Region shall,,within ten. (10) days from the date of this direction, open, and count the. ballots of Jolzn, Hauze and Martha Lynn, and serve upon the,parties a supplemental tally of ballots.] e See Peerless Plywood Compamgl, 107 NLRB 427; Crown Drug Company,, 110.NLRB 1845.