H & M Knitting Mills, Inc.

H & M KNITTING MILLS, . INC. 361 Air Reduction Corporation to engage in a concerted refusal in their course of their employment to perform services •affecting the Company with an object of forcing or requiring the Company to assign work to members of Respondent organizations rather than to its own employees , Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act. 3. The Respondents have not complied with the decision and determination of dispute previously issued by the Board in this controversy. 4. The implementation of the procedural steps and the chronology thereof taken with respect to this controversy does not provide a basis for depriving the Board of its power of jurisdiction to issue an order in this proceeding. 5. Respondent International is responsible for the. picketing , which formed a part of the unfair labor practices act violative of Section 8(b)(4)(D) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommendations omitted from publication.] H & M Knitting Mills, Inc., Petitioner and International Ladies Garment Workers' Union, AFL-CIO. Case No. 2-RM-1042. July 29, 1960 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election issued by the Board on November 19, 1959, an election by secret ballot was con- ducted on December 11, 1959, under the direction and supervision of the Regional Director for the Second Region, among the employees in the appropriate unit. After the election, the parties were furnished with a tally of ballots which showed that of 111 ballots cast, 33 valid ballots were cast against the Union and 78 ballots were challenged. The Regional Director investigated the challenges and on January 29, 1960, issued his report on challenged ballots, in which he recom- mended that the challenges to the ballots of Laura Brighton and Vera Clark be sustained, that the challenges to the ballots of Robert Edwards and Verna Brown be overruled, and as to the remaining 74 challenged ballots involving the eligibility of economic strikers and their replacements, he made findings of fact but no recommendations. Thereafter, the Employer filed timely exceptions to the report. The Board has considered the Regional Director's report on chal- lenged ballots and the Employer's exceptions thereto, and upon the entire record in this case, makes the following findings : The Regional Director found that on March 4, 1959, employees of the Employer instituted a strike against the Employer to compel it to. recognize the Union. It also appears that the strike was in prog- ress at the time of the election on December 11, 1959. Of the 78 bal- lots challenged at the election, 46 were cast by alleged strikers, 30 by alleged replacements, and 2 by alleged supervisors.' i The Regional Director recommended that the challenges to the ballots of Laura Brighton and Vera Clark be sustained on the ground that they were replacements hired 128 NLRB No. 49 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the strike herein was an economic one.' In our deci- sion in W. Wilton Wood, Inc., 127 NLRB 1675, we held that in the amended Section 9 (c) (3) of the Act, Congress provided that economic strikers who retained their status as such on the eligibility and election dates-even though replaced-were eligible to vote in any election conducted within 12 months of the commencement of the strike. We also held that permanent replacements were eligible voters if em- ployed on the eligibility and election dates. The Regional Director's findings herein clearly indicate that 27 of the challenged voters, listed in Appendix A attached hereto, were economic strikers on the eligibility and election dates. They also establish that another 28 of the challenged voters, listed in Appendix B attached hereto, were hired during the strike either as permanent replacements or as permanent new employees and were so employed on the eligibility and election dates. These 55 persons were therefore eligible voters and the challenges to their ballots are hereby overruled. Among others, the seven employees listed in Appendix C attached hereto were challenged by the Employer on the ground that they were not employed at the time the strike began. The investigation shows that on various dates before the strike, these employees were laid off for lack of work with the understanding that they would be recalled when business improved. Although they had not been recalled prior to the strike, there is a history in the plant of frequent layoffs for lack of work and subsequent recall of employees. It appears that shortly after the strike began these laid-off employees were requested by Employer to return to work. They failed to do so. In these circum- stances, we find that they elected to join the strike and are eligible to vote as economic strikers. Accordingly, we hereby overrule the challenges to their ballots. As it appears that striker Frank Sielicki has admittedly obtained other permanent employment, the challenge to his ballot is hereby sustained. Striker Donald Young was challenged by the Employer on the ground that during the strike, he was convicted of assault on the picket line. However, subsequent to his conviction and prior to the election, the Employer took no affirmative action to discharge him, but on the contrary invited him to return to work which he failed to do. In these circumstances we find, under our holding in Union Manufactur- ing Company (101 NLRB 1028) which was reaffirmed in W. Wilton TVood, that he is an eligible striker and overrule the challenge to his ballot. after the eligibility date and that the challenges to the ballots of Robert Edwards and Verna Brown be overruled on the ground that they were not supervisors as alleged As no exceptions were filed to these recommendations, they are adopted pro forma 2 See Bright Foods, 126 NLRB 553. H & M KNITTING MILLS, INC. 363 The Employer challenged Frank Fuller on the ground that he had quit his employment. The investigation shows that although he was working on the day of the strike (March 4), about 2 weeks previ- ously he had told the Employer that he intended to quit his job shortly in order to open a gasoline station. He went out on strike and 11 days later signed a 9-month lease on a gasoline station. At that time, he expected to continue the business indefinitely if it proved success- ful. It did not and he gave up the business on November 20. He' now desires to return to work for the Employer upon settlement of the strike. For the purposes of the amended Section 9(c) (3), the Board has decided that self-employment during an economic strike, standing alone, does not establish that the striker has abandoned his job with the struck employer. However, in the circumstances of this case, we are satisfied that Fuller's self-employment during the strike constituted an abandonment of his employment with the Employer. Accordingly, we sustain the challenge to his ballot.3 As we have overruled the challenges to 65 ballots, we shall direct that they be opened and counted. There remains unresolved the chal- lenged ballots of the nine persons listed in Appendix D, which we will later consider only in the event that they are sufficient in number to affect the results of the election. [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 ballots of Robert Edwards, Verna Brown, and the employees listed in Appendixes A, B, and C; and serve upon the parties a revised tally of ballots.] 3 Member Jenkins disagrees with the conclusion that Fuller 's self-employment during the strike constituted an abandonment of his employment with the Employer Fuller continued to work until he went out on strike That he stated 2 weeks before the strike that he intended to quit does no alter the undenied. fact that lie was employed on the date the strike commenced and joined in the strike . Thereafter, he was self-employed, having leased a gasoline station on a short-term lease. But the Employer wrote him three letters during the interim requesting that he return to work and it is clear from the investigation he desires to return to work for the Employer when the strike is settled In these cir- cumstances, Member Jenkins is of the opinion that the facts fail to establish such a clear and unequivocable intent on the part of Fuller to abandon his job so as to deprive him of the right to vote. He would therefore overrule the challenge to his ballot and find him eligible APPENDIX A Lena Alger Lyda Belle Hicks Eleanor Taggart Doris Barletto Winifred Roa Robert Fell Amos Belcher Wilhelmena Toussaint Leo Brozdowski Dorothy Brown Ella Van Gordon Anne Belcher Vera Buddenhagen Herma Wrage Agnes Britt Helen Case Genevieve Eagan Rosalina Fine Thomas Chant Lorena O'Neill Edith Hoffman Helen Costic Annabel Yale Edward Nieman Earl Doty Freda Lertora Elda Schleer 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B Alicia Bonano June Shanks Deanna Sexton Peggy Snyder Rose Reinwald Elsie Merker Harold Collette Ruth Riley Andrew Witkowski Catherine Demarco Jeniva E. Conklin George R. Mallinson Marie Rosa Jeniva I. Conklin Carol Baisley Gladys Roeder Beverly Horton Douglas Martin Walter Acton Myrtle Laub8cher Russell D. Corwin Helen O'Fee Wilda Valentine Dorothy Merker Philip Gould Lee Biccum William Dicks Kenneth Mallinson APPENDIX C Lena Kent George Schembry Harold Chichester Maude Rooney Anna Arbutowich Helen Oliver John Pedlock APPENDIX D Elva Porter Iveta Kelly Idella Hornbeck George Denes Martha Kent Helen De Groat Ursula Kraft Helene Uhlig Maude C. Higby Atlanta Biltmore Hotel Corporation and Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. Case No. 10-CA-4222. July 29, 1960 DECISION AND ORDER On April 1, 1960, Trial Examiner Phil Saunders issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 1 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]. 128 NLRB No. 50.