Otarion Listener Corp.

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the nature of the unfair labor practices committed , I shall also recom- mend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Unions are labor organiza- tions, within the meaning of the Act. 2. By contributing support to Local 14149, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 3. By discriminating with respect to terms and conditions of employment, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. [Recommendations omitted from publication.] Otarion Listener Corp. , and its subsidiary Audio Electronics Co. and Local 1783, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case No. 2-RC-9924. Septem- ber 4, 1999 DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election duly executed by the parties, an election by secret ballot was conducted on May 21, 1959, under the direction and supervision of the Regional Director for the Second Region among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that , of approximately 75 eligible voters, 74 cast valid ballots, of which 37 were for, and 36 were against, the Petitioner, and 1 ballot was challenged . The challenged ballot was sufficient to affect the results of the election. Both the Petitioner and the Employer filed timely objections to conduct affecting the results of the election . In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation of both the objections and the challenged ballot and on June 24, 1959, issued and duly served upon the parties his report on objections and challenges. In his report, the Regional Director recom- mended that objections of the Employer and the Petitioner be over- ruled and that the challenge to the ballot of Betty Moss be overruled and her ballot be opened and counted . The Petitioner and the Em- ployer filed exceptions to the Regional Directors ' 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 Rodgers and Fanning]. 124 NLRB No. 109. . OTARION LISTENER CORP. 881 The Board has considered the objections, the Regional Director's report and the exceptions thereto, and upon the entire record in this case, finds : 0 1. The Employer is engaged in commerce within the meaning of the Act. The Petitioner is a labor organization claiming to represent cer- tain 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 the purposes of collective bargaining within the meaning of Section 9(b) of the Act : All production and maintenance employees including shipping and receiving employees, repair clerks, and cleanup employees employed at the Employer's Scarborough Park, Ossining, New York, plant, but excluding office clerical employees, engineering department employ- ees, salesmen, cafeteria employees, and supervisors as defined in the Act. 5. The ballot of Betty Moss was challenged by the Board agent because her name did not appear on the eligibility list. The Employer contended that her name was omitted through inadvertence. The Regional Director found that Betty Moss had been on a leave of absence due to illness from March 1959 to the date of the election, and that as she had employee status on both the eligibility date and the date of the election, she was eligible to vote. He therefore recom- mended that the challenge to her vote be overruled and her ballot be opened and counted. The Petitioner, while not disputing the Regional Director's finding that Betty Moss at no time prior to the election informed the Em- ployer of any intention to quit, contends that she in fact had such intent and failed to so inform the Employer solely to protect certain benefits accruing to her as an employee on sick leave, and it requests a hearing thereon. The contention is without merit. The Board has held that the fact that an employee intends to quit after an election, and does so, is no basis for finding him ineligible to vote.' The test for determining eligibility is the individual's actual status on the eligibility date and the election date.' Thus, where, as here, an in- dividual is an employee on sick leave on these critical dates and neither the employee involved nor the employer has taken any action to terminate the employee relationship prior to the election, the in- dividual is eligible to vote. As we find that Betty Moss was an eligible ,. 1 Personal Products Corporation, 114 NLRB 959, 961. See Sylvania Electric Products, Inc., 119 NLRB 824, 832. 5255 43-60-vol. 124-57 882 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD voter, the challenge to her ballot is hereby overruled, and' we shall direct the Regional Director to open and count her ballot. 'As the factual issue raised by the Petitioner's contention is immaterial to our resolution' of the challenge, the request for a hearing is denied. In the circumstances, as certain of the objections may. be rendered moot by the revised tally of ballots, we shall not pass upon any of the objections to 'the election until the ballot of Betty Moss has been opened and counted.' Accordingly, the Board expressly reserves herein its disposition of all other ' recommendations of the Regional Director as contained in his report, and all exceptions filed by the parties with respect thereto, until. such time as the Regional Director serves his revised tally of ballots.. [The Board directed that the Regional Director for the Second Region, shall, within 10 days from the date of this Direction, open and count the ballot of Betty Moss, and serve upon the parties a' supplemental tally of ballots.] See Hoffman Hardware Co., 112 NLRB 982. Aluminum Furniture Manufacturers Association . and United Steelworkers of America, AFL-CIO, Petitioner. Case No. 12-RO-491. September 4, 1959 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert N. Watterson, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Jenkins and Fanning]. 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 em- ployees of the Employer. 3. The Employer and the Intervenor, Upholsterers' International Union of North America, AFL-CIO, contend that a contract bars this proceeding. On April 23, 1956, the Employer and Teamsters Local 290 1 executed a contract effective to September 1, 1960. This contract I Building & Construction Material , Alcoholic & Carbonated Beverages , Processing & Distribution Drivers and Employees, Local Union 290, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America , herein called Teamsters Local 290, was served with notices of 'hearing, but did not enter an appearance at the hearing. 124 NLRB No. 113.