Thermoid Co.

THERMOID. COMPANY (SOUTHERN DIVISION) 57 .Thermoid . Company (Southern Division) and International Chemical Workers Union, AFL-CIO, Petitioner. Case No. 11-RC-1097. March 5, 1959 SUPPLEMENTAL DECISION, DIRECTION, AND ORDER Pursuant to a Decision and Direction of Election issued by the Board on July 2, 1958,1 an election by secret ballot was conducted on July 23, 1958, under the direction and supervision of the Regional Director for the Eleventh Region, among. the employees in the appro- priate unit. Following the election, the Regional Director served upon the parties a tally of ballots which showed that of approximately 300 eligible voters, 221 cast ballots, of which 93 were for and 96 were against the Petitioner. There were 32 challenged ballots, a number sufficient to affect the results of the election. On July 28, 1958, the Petitioner filed timely objections to conduct affecting the results of the election. Pursuant to the Board's Rules and Regulations, the Regional Director investigated the challenges and objections, and, on December 11, 1958, issued and duly served upon the parties his report on challenges and objections. In his report, the Regional Director found that none of the objections raised substantial and material issues with respect to the election, and rec- ommended that they be overruled. He further recommended that the challenges to the ballots cast by 20 laid-off employees be sustained 2 and that the challenges to the ballots cast by 12 alleged supervisors be overruled 3 The Petitioner has filed timely exceptions to the Re- gional Director's report. Upon the basis of the Regional Director's report, the Petitioner's exceptions thereto, and the entire record in this case, the Board makes the following supplemental findings : 4 A. The challenged ballots The Petitioner excepts to the Regional Director's finding that 20 employees who were laid off because of lack of work have no reasonable expectancy of further employment, and to his recommendation that challenges to their ballots be sustained. The Regional Director's 1 Unpublished. 3 Mattie L . Bailey, Rosa Black, Ritchie M. Boyd , Mary J. Castle , Sarah J. Clawson, Willie Craig, Kermit Douglas, Clyde Elmore, Johnny Greene, J. B. Jones, Nellie Jones, Arthur Jordan, Jr., James H. Kendall, Lonce Linton, Lois Lowery, James W. Moore, James A . Moss, John L. Roddey , Emmett Stokes, and Woodson Wesley. 3 J. C. Beaty, John W. Dulin, Luther Gibbs, Mitchell Hartsell, Joel T. Outen, Jack Scarborough , William G . Collins, Charlie A. Fox, Jr., Billy Joe Griffin, Wade Jones, Vernon Privett, and Theodore Turner. '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]. 123 NLRB No. 11. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigation disclosed that these employees were among a total 60 or more individuals who were laid off by the Employer between February and June 30, 1958, because of lack of work. While the investigation also disclosed that the employees were advised that.they would be recalled when work "picked up," none of them had been recalled at the time of the election, and the Employer states that it does not expect an increase in business or a need for these employees in the foreseeable future. The Petitioner has submitted no evidence to counteract the Em- ployer's statements concerning the unlikelihood of recall of the laid- off employees. Rather, the Petitioner argues, in effect, that, as the Employer promised the laid-off employees that they would be recalled when work "picked up," and as this was the Employer's first mass layoff in a number of years, the Board should take judicial cognizance of the fact that business conditions have improved, and find that each employee has a reasonable expectancy of reemployment. We find no merit in this contention. While economic conditions may have im- proved generally, as alleged by the Petitioner, there is no showing that the Employer's business has improved or that there is any need for additional employees. Accordingly, as the record shows that there is no reasonable expectancy that the laid-off employees will be recalled in the near future, we find, in agreement with the Regional Director, that the laid-off employees are ineligible to vote. The challenges to their ballots are therefore sustained.' The ballots of 12 "fixers" were challenged by the Petitioner on the ground that these employees were supervisors, although the Board had found to the contrary in its initial Decision and Direction of Election. On the basis of his investigation, which showed that except for Wade Jones, there had been no change in their duties since the Board's original decision herein, the Regional Director concluded that fixers were not supervisors and recommended that challenges to their ballots be overruled.' As no exceptions were filed to the Regional Director's finding with respect to 11 of the challenged ballots (all except that of Wade Jones), we shall, in accord with the recommendation of the Regional Director, order that they be opened and counted. The Petitioner, however, excepts to the Regional Director's failure to find that Wade Jones was a supervisor, and therefore ineligible to vote, especially in view of his finding that Jones acted as relief fore- man for Jerome Wilson, a supervisor, for approximately a month im- mediately before and following the election. We do not believe, however, that Jones, a nonsupervisory employee, may be denied his right to vote in the unit to which he properly belongs, solely because 5 Shaw-Randall Company, Inc., 116 NLRB 444. 6 See Rockwell Manufacturing Company (Kearney, Nebraska, Division ), 122 NLRB 798; Stokely-Bordo, 121 NLRB 936. THERMOID COMPANY (SOUTHERN DIVISION) 59 he was temporarily substituting for a supervisor at the time of the election. We find, rather, that this temporary and sole assignment did not destroy Jones' interests as a member of the production and main- tenance unit, and that he is therefore eligible to vote.' We shall, therefore, in accord with the recommendation of the Regional Direc- tor, order that his ballot be opened and counted. B. The objections In its objections, the Petitioner alleged that the Employer engaged in conduct affecting the results of the election by (1) engaging in surveillance at the polling place; (2) escorting voters to the polling place; (3) visiting employees' residences, and attempting espionage activity concerning employee -union membership; (4) paying em- ployees expense money to electioneer against the Union; (5) granting a wage increase and other economic benefits on the eve of the election; (6) carrying on antiunion activities during working hours, emphasiz- ing closing the plant; (7) drastically reducing its complement of employees on the eve of the election by discharges and layoffs; and (8) displaying coercive and intimidatory posters and pictures prior to and during the election. As noted above, the Regional Director recom- mended that all the objections be overruled. As no party excepted to the findings of the Regional Director with respect to objections Nos. 2 and 7, above, we adopt his findings and overrule these objections. The Petitioner, however, has excepted to the Regional Director's recommendation that the remaining objections should be overruled, and the exceptions to his findings with respect to objections Nos. 3 and 4, above, raise substantial and material issues of fact which can- not be resolved without a hearing. As the challenged ballots which we have found should be opened and counted would be determinative of the results of the election if the Petitioner received a majority of the votes cast, we shall direct that they be opened and counted. Accordingly, if the Petitioner receives a majority of the valid votes cast, we shall direct that the Regional Director issue a certification to the Petitioner as the collective-bar- gaining representative of the employees in the unit heretofore found appropriate. However, if the Petitioner does not receive a majority of the valid votes cast, we shall direct that a hearing be held on objec- tions Nos. 3 and 4 to determine the issues raised by the Petitioner's exceptions to the Regional Director's report. [The Board directed that the Regional Director for the Eleventh Region shall open and count the challenged ballots cast by the fixers listed in footnote 3, herein, and serve upon the parties a supplemental tally of ballots, including the count of the challenged ballots.] 4 Cf. Huntley-Van Buren Company, 122 NLRB 957, and cases cited therein. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board sustained the challenges to the ballots of the laid-off employees listed in footnote 2, and ordered that, in the event the Peti- tioner does not receive a majority of the valid votes cast after the challenged ballots cast by the fixers have been opened and counted, the Regional Director shall conduct a hearing on the issues raised by the Regional Director's report on objections Nos. 3 and 4 and the Petitioner's exceptions thereto.] [The Board further ordered that, in the event such a hearing is held, the hearing officer designated for the purpose of conducting the hear- ing serve upon the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the objections, and referred the matter to the Regional Director for disposition as provided for herein.] Timber Laminators, Inc. and Carpenters Local 426, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, Petitioner. Case No. 36-RC-1370. March 5, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to the Decision and Direction of Election issued by the Board on November 28, 1958, an election by secret ballot was con- ducted in the above-entitled matter on December 16, 1958, under the direction and supervision of the Regional Director for the Nineteenth Region.' Upon the conclusion .of the election a tally of ballots was furnished the parties in accordance with the rules and Regulations of the Board. The tally of ballots shows that there were approximately 25 eligible voters, and that 24 ballots were cast, of which 15 were for the Peti- tioner, 8 were against the Petitioner, and 1 was challenged. Thereafter, on December 22, 1958, the Employer filed timely objec- tion to conduct affecting the results of the election. On January 6, 1959, the Regional Director issued and duly served upon the parties his report on objections, attached hereto. In his report the Regional Director, in substance, found no merit in these objections, and recom- mended to the Board that the objections be dismissed and that the Petitioner be certified as the exclusive bargaining representative of the employees in the unit found apropriate. On January 22, 1959, the Employer filed exceptions to the Regional Director's report. 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 Jenkins]. The Board has considered the Employer's objections, the Regional 123 NLRB No. 5.