Huntley-Van Buren Co.

HUNTLEY-VAN BUREN COMPANY 957 Huntley-Van Buren Company and Upholsterers' International Union of North America, AFL-CIO, Petitioner. Case No. 7-RC-3839. January 14, 1959 DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election, executed June 9, 1958, an election by secret ballot was conducted on June 19, 1958, under the direction and supervision of the Regional Director for the Seventh Region, among the employees in the agreed appropriate unit. At the close of the election, a tally of ballots was issued and duly served on the parties, in accordance with the Rules and Regulations of the Board. The tally shows that there were approximately 84 eligible voters, and that 77 ballots were cast, of which 39 were for the Petitioner, 38 against the Petitioner, and 3 ballots were challenged; there was 1 void ballot. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, pursuant to the Board's Rules and Regulations, investigated them and, on October 13, 1958, issued and duly served upon the parties a report and recommenda- tion on objections to election' and challenged ballots, in which he recommended that the challenges to the ballots of Charles Waters, Leo Black, and Gaylord Akin be sustained and that the Petitioner be certified. In the absence of exceptions, we adopt the recommenda- tion that the challenges to the ballots of Charles Waters and Leo Black be sustained. The Employer, however, filed exceptions to the Regional Director's recommendation as to the ballot of Gaylord Akin. 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 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. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within Sec- tion 9(b) of the Act : All production and maintenance employees at the Employer's Sturgis, Michigan, plant, including truckdrivers and leaders, but excluding office employees, office clerical employees, plant clerical employees, technical employees, professional employees, guards, foremen, and supervisors as defined in the Act. I Although the Petitioner filed timely objections to the election , it subsequently re- quested permission to withdraw its objections . In his report, the Regional Director approved this request. 122 NLRB No. 111. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Gaylord Akin was hired on November 16, 1951. On April 7, 1.958, he agreed, at the request of his foreman, to take a temporary transfer for his regular work on polishing wheels to the performance of the duties of a night watchman who had been laid off. The transfer took place on April 10, 1958. The foreman informed Akin at the time that the transfer was temporary and necessitated by poor business conditions, and that he would be returned to his job as soon as business conditions improved ; however, no definite date was set for Akin's reassignment to his regular duties. Akin accepted the transfer on that basis. The Regional Director found that Akin was performing guard duties within the meaning of Section 9(b) (3) of the Act on both the payroll date and the date of the election and concluded that he was ineligible to vote in an election concerning production and maintenance employees. The Employer excepts to the Regional Director's conclusion, but not to his factual findings. As the Board has held,2 an employee, who at the time of an elec- tion is temporarily working outside the unit in which the election is to be held, may nevertheless vote in the election which affects his regular duties. If Akin's temporary employment had not been as a guard, there would thus be no question as to his voting eligibility. Although, in view of Section 9(b) (3), the fact of Akin's temporary employment as a guard raises questions which were not present in the cited cases, we nevertheless do not believe that allowing him to vote in an election for a production and maintenance unit in this case conflicts with the statutory policy of placing guards in separate units. Insofar as it is pertinent here, Section 9(b) (3) precludes the Board from finding appropriate a unit which includes both guards and other types of employees. The intent of the Congress, in en- acting this section, was to preclude the possibility of a conflict between the loyalty of guards to fellow union members and their duty to enforce the employer's rules and to protect his property .3 Here, however, the conflict which the Congress envisioned and sought to guard against does not exist. For Akin, so long as he performs any guard duties, will not be in the production and maintenance unit and, during that period, the Petitioner, if certified as a result of this election, may not bargain for him. It is only at such time as he is relieved of his guard duties and returns to his regular job within the unit that the Petitioner, if certified, may represent his interests. Moreover, if there is any conflict of loyalties here, such conflict was created by Akin's employment as a guard during the period of his temporary layoff from his regular job within the unit, 2Lam8on Corporation, 100 NLRB 667,'670; Epp Furniture Company, 86 NLRB 120, 125. These cases did not involve any question of guard duties. 3 Walterboro Manufacturing Corporation, 106 NLRB 1383, 1384, footnote 4. ALLIED PLYWOOD CORP. 959 and will exist whether or not he is permitted to vote in this election, as his. interests continue to remain with his permanent job. Contrary to our dissenting colleagues, the issue here is not the usual one of whether a guard may be included in a unit of nonguard employees. It is, rather, whether the temporary employment as a guard of any employee who will shortly return to his nonguard job in the unit renders him ineligible to vote in that unit. In giving limited recognition to the guard status of such an employee while he is temporarily out of the unit, we are satisfied we have not indulged in an inconsistency.. We have, instead, recognized the obvious fact that the interests of such an employee continue to remain with his permanent job, and that he is therefore to be regarded, for purposes of voting eligibility, no differently from any other employee in tem- porarily laid-off status. Under all the circumstances, we find that Akin, as an employee temporarily laid off from his job within the unit, is eligible to vote in the election. We therefore overrule the Regional Director's recommendation that the challenge to his ballot be sustained; and shall direct that his ballot be opened and counted. [The Board directed that the Regional Director for the Seventh Region, shall, within ten (10) days from the date of this Direction, open and count the ballot of Gaylord Akin, and serve upon the parties a revised tally of ballots, including therein the count of this ballot.] MEMBERS RODGERS and BEAN, dissenting : The majority; as required by statute and by established precedent, has excluded Gaylord Akin from the bargaining unit because he is a guard. But having done so, it concludes that he is nonetheless eligible to vote in this same bargaining unit from which he has been excluded. Because we cannot subscribe to this inconsistency, we would sustain the Regional Director's challenge to Akin's ballot and would certify the Petitioner as the bargaining representative of the employees in the unit herein. Allied Plywood Corp. and Local 25, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case No. 1-RC-5363. January 15, 1959 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a, stipulation for certification- upon consent election executed on September X17, 1958, an election by secret ballot was conducted on September 25, 1958, under the direction and super- 122 NLRB No. 116.