The Joclin Manufacturing Co.

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. General Sheet Metal Co in as employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. By engaging in the activities described in section III of this report, the Re- spondent has not engaged in unfair labor practices affecting commerce within the meaning of Section 8 (b)(1)(B) and 8 (b)(3) of the Act. RECOMMENDED ORDER I recommend that the Board enter an order dismissing the complaint. The Joclin Manufacturing Company and United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO The Joclin Manufacturing Company and United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, Petitioner. Cases 17os. 1-CA-3656 and 1-RC-6506.1 September 23, 1963 ORDER CONSOLIDATING CASES AND SUPPLEMENTAL DECISION, ORDER, AND DIRECTION On October 30, 1961, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO,2 was certified in Case No. 1-RC-6506 as the representative of the production and maintenance employees of The Joclin Manufacturing Company I following an election pursuant to a Stipulation for Certification Upon Consent Election and the sub- sequent resolution of challenged ballots by the Board 4 Because it took the position that the said certification was invalid, the Respond- ent refused to bargain with the Union, and in due course the Board issued its Decision and Order in Case No. 1-CA-3656,5 affirming the Trial Examiner's conclusions that the Respondent thereby violated Section S (a) (5) and (1) of the Act.' The Board thereafter filed a petition for enforcement of its said Order, which was denied by the United States Court of Appeals for the Second Circuit.' The court held that substantial and material factual questions existed with re- spect to the challenged ballots of Rosania, Palukis, and Rollins which should have been resolved by the Board upon a hearing, as requested 1 For the reasons hereinafter set forth , Case No 1-RC-6506 is being consolidated with Case No 1-G1-3656. Herein called the Union. 3 Herein called the Respondent or the Company. 4 Not reported in printed volumes of Board decisions 5 137 NLRB 216 'The Respondent contended that two employees , Palukis and Rollins , were ineligible and their challenged ballots were improperly counted, and that two other persons, Ursini and Rosania, should have been included in the unit , and the challenges to their ballots were improperly sustained and their ballots excluded. These contentions were first raised in the representation proceeding and a hearing requested on the issues, and were reiterated in the unfair labor practice case. 7 N L R B v. The Jocl4n Manufacturing Company, 314 F. 2d 627 ( C A 2), opinion modi- fied and rehearing denied at 635. 144 NLRB No. 74. THE JOCLIN MANUFACTURING COMPANY 779 by the Company.' The court also found, as a matter of law, that the ballot cast by Ursini should have been opened and counted, because he was properly within the bargaining unit and, therefore, eligible to vote. Accordingly, the court vacated the Board's Order and re- manded the case to the Board for further appropriate proceedings. A hearing on the issues concerning Rosania, Palukis, and Rollins was ordered by the Board on April 18, 1963.1 On July 9, 1963, Trial Examiner Paul Bisgyer issued a Supplemen- tal Intermediate Report in Case No. 1-CA-3656, in which he made findings and recommendations concerning the said three challenged ballots cast in the consent election held in Case No. 1-RC-6506, as set forth in the attached Supplemental Intermediate Report. Thereafter, the Respondent filed exceptions to the said report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reveiwed 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 entire record in this case and adopts the findings and recommendations of the Trial Examiner, with the following additions. Contrary to the Respondent's contention, we agree with the Trial Examiner, for the reasons stated by him, that employees Palukis and Rollins are plant clericals, and that the parties to the Stipulation for Certification for Consent Election intended to include plant clericals within the bargaining unit. Accordingly, the challenges to the ballots cast by Palukis and Rollins were properly overruled and their votes were validly counted. With regard to the third challenged individual, we also agree with the Trial Examiner that Rosania was eligible to vote in the election and that his ballot should have been opened and counted. Accord- ingly, we reverse our previous ruling as to Rosania. As set forth by the Trial Examiner, the revised tally of ballots, upon which the certification was based, showed that the Union re- ceived 19 votes and that there were 17 cast against it. In view of 8 The court upheld the Board's ruling sustaining the challenges to the ballots of two summer student-employees, Cella and Stupski, on the ground that they were ineligible to vote 8 Prior to issuing the Order to reopen the record, the Board considered the court'. sug- gestion that the Board might, if it were deemed advisable, conduct a new election with a more clearly defined bargaining unit. The Board, with all due respect to the coui is suggestion, was of the opinion that the procedure which it has adopted herein, rather than a new election, could best resolve the issues and effectuate the policies of the Act 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our finding concerning Rosania, and as we accept the court's opinion that the ballot cast by Ursini should have been opened and counted, it is clear that the ballots of Rosania and Ursini could have affected the result of the election. The Union's majority status is thus in doubt. Under these circumstances, it is apparent that there was merit in the Respondent's contention in the original hearing herein that it was not obligated to bargain because of its good-faith doubt as to Union's majority status. We shall, therefore, dismiss the complaint in its entirety. Since it appears that issues remain in Case No. 1-RC-6506 which must be resolved, we hereby order that Case No. 1-RC-6506 be, and it hereby is, consolidated with Case No. 1-CA-3656 for purposes of this Decision. Further, we shall order that the certification of the Union issued on October 30, 1961, in Case No. 1-RC-6506, be vacated and, as the Trial Examiner recommended, we shall order that the ballots of Rosania and Ursini be opened and counted and a second revised tally of ballots be issued and served upon the parties. [The Board dismissed the complaint in Case No. 1-CA-3656 and vacated the Certification of Representatives issued on October 30, 1961, in Case No. 1-RC-6506.] [The Board directed that the Regional Director for the First Region shall, within 10 days from the date of this Direction, open and count the ballots of John F. Rosania and Andres Ursini and serve upon the parties a second revised tally of ballots.io] io The provisions of Section 102 69 (g) of the Board's Rules and Regulations, Series 8, as amended, shall thereupon be applicable. SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDATION PRELIMINARY STATEMENT On May 23, 1962, the Board issued a Decision and Order in the above-entitled proceeding,' finding that the Respondent, The Joclin Manufacturing Company, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to bargain with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, herein called the Union, as the certified representative of the Respondent's production and maintenance employees. On January 30, 1963,2 the United States Court of Appeals for the Second Circuit, finding material error in the Board's disposition of certain challenges , denied enforcement of, and vacated, the Board's Order and remanded the case to the Board for further appropriate proceedings. Thereafter, the Board petitioned the court for rehearing. On March 1, 1963,3 the court modified its opinion but denied the petition for rehearing. On April 18, 1963, the Board directed that the record in this proceeding be re- opened and that a further hearing be held before a Trial Examiner respecting "the 1137 NLRB 216. N L.R B. v. The Joclin Manufacturing Company, 314 F. 2d 627 (C A. 2). Id at 635. THE JOCLIN MANUFACTURING COMPANY 781 eligibility to vote of Rosania, Rollins and Palukis, in accordance with the court's decision of January 30, 1963, as modified on March 1, 1963." 4 The Board further ordered that: ... upon conclusion of such supplemental hearing, the Trial Examiner shall prepare and serve upon the parties a Supplemental Intermediate Report con- taining findings of fact upon the evidence received pursuant to the provisions of this Order, conclusions of law, and recommendations; and that, following the service of such Supplemental Intermediate Report upon the parties, the pro- visions of Section 102.46 of the Board's Rules and Regulations shall be applicable. Pursuant to the aforesaid Order, a hearing was held before Trial Examiner Paul Bisgyer, on May 23 and 24, 1963, in New Haven, Connecticut. Thereafter, the General Counsel and the Respondent filed briefs in support of their respective posi- tions which I have carefully considered. Upon the record made in this supplemental hearing and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS The Representation Election The election out of which the issues herein arise was held on July 7, 1961,5 pursuant to a Stipulation for Certification upon Consent Election among the Re- spondent's "production and maintenance employees, excluding office clerical and professional employees, guards and supervisors as defined in the Act." The revised tally of ballots resulting in the Union's certification showed that the Union won the election by a vote of 19 to 17. Included in the Union's majority were the votes cast by Isabelle Palukis and Rita Rollins, whose eligibility to vote is in issue here. Also in question is the propriety of excluding John V. Rosania's ballot from the count. 1. Rosania The Respondent, in disagreement with the General Counsel, contends that Rosania was a regular part-time employee entitled to vote in the election. The record estab- lishes the following pertinent facts; 6 Rosania was a full-time employee of another employer. Because work slackened off at that job, he was transferred to a lesser pay- ing position there. This consequent reduction in earnings prompted him to seek part-time employment to supplement his income. At about this time, Peter Kaman, a fellow employee who was also working for the Respondent as a regular part-time employee, informed Rosania that work might be available at the Respondent's plant. It appears that Kaman was then contemplating leaving his part-time job with the Respondent to enter the hospital and recommended Rosania to Respondent's Fore- man Kudej. On June 9 Rosania applied for part-time work at the Respondent's plant and was hired a few days later as Kaman's replacement. Before starting work, Kudej impressed upon Rosania that he was required to work regularly at least 4 hours a night, 5 nights a week, and Rosania agreed. Nothing else was said about the duration of his employment. Rosania's employee record states that he was hired for "Part Time Night" shift. His job was cleaning and baking clamps, the same type of work that Kaman was doing when he left and that day shift employees also performed. Rosania worked for the Respondent at least 4 hours a night through the date of the election until the week ending July 22 when he put in only 5 hours and was laid off because of lack of work.? During the week ending August 26 he returned to his part-time employment, working 12 hours. Because of the slack in the Respondent's plant and the availability of overtime in Rosania's regular full-time job, Rosania quit the Respondent on or about August 26. 4 The court also held that as a matter of law the Board erroneously e- cluded Andres 17raini from the appropriate unit and refused to count his ballot 'All dates refer to 1961 unless otherwise indicated U These findings are based on the credited testimony of Rosania and Respondent's fore- man. Toseph Kndej, which is mutually corroborative in material respects In so doing, I am not unaware of Rosania's unnecessary attempted concealment of the fact that Peter Kaman had informed him about the availability of part-time work at the Respondent's plant 7 Rosania's wage record shows that for the weeks ending June 17, 24, July 1, 8, 15, 22, and August 26, Rosanla worked 30.4, 25, 20, 20, 25, 5, and 12 hours, respectively 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing evidence persuades me that the Respondent hired Rosania as a permanent part-time employee and not, as the General Counsel urges, as a temporary or casual employee. Although Rosania's employment had terminated in a relatively short period and sooner than he had expected, it was due solely to the combination of an unanticipated decline in work at the Respondent's plant and the availability of overtime work at Rosania's full-time job. The Board has frequently held that the essential element in determining an em- ployee's eligibility to vote is his status on the designated payroll and election dates. Indeed, the Second Circuit also noted in its original opinion in the present case.9 "What happened later, `cannot color the picture as it stood on the critical date,' N L.R.B. v. Belcher Towing Company, 284 F. 2d 118, 121 (5 Cir. 1960)." In view of all the facts and circumstances herein, I find that Rosama was at the critical dates a regular part-time employee with a sufficient community of interest with the Respondent's full-time employees in the terms and conditions of employment to warrant his participation in the selection of a bargaining representative. The fact that he testified that he did not consider himself a part of the full-time employee group cannot detract from his regular part-time employee status or his inherent interest in the working conditions at the Respondent's plant. Accordingly, I rec- ommend that his ballot be opened and counted. 2. Palukis and Rollins Two questions are here presented with respect to the voting eligibility of Palukis and Rollins-one, whether they were office clerical employees specifically excluded from the stipulated production and maintenance unit; and two, whether, in any event, the parties to the Stipulation for Certification upon Consent Election intended to exclude them. The Respondent answers both questions in the affirmative, while the General Counsel takes a contrary position. At all times material herein, Palukis was in charge of a screened-in "crib" located in the middle of the production area.9 She was assisted in her duties by Rollins. Both of these employees were under the direct supervision of Helen Dodd, a cost analyst and concededly an office employee whose office was located in the adminis- trative section of the building. Their duties entailed issuing to, and receiving from, production employees materials and finished products; keeping records of these transactions; maintaining continuous and periodic inventories of merchandise and materials on hand, preparing daily and weekly cost cards containing labor and ma- terials charged to a particular job or product; and performing other related clerical functions. The completed reports were transmitted to their supervisor, Dodd. Ac- cording to Palukis, she spent the major portion of her time performing the above- described paperwork and a daily maximum of 1 hour to a minimum of 5 or 10 minutes performing the physical work of issuing and receiving materials. The record is also clear that, unlike office clerical employees who were salaried, Palukis and Rollins were paid on an hourly basis, as were the production employees. In addition, their working hours and lunch period coincided with those of the production em- ployees and were different from those of the office employees. In view of the foregoing, I find that, notwithstanding the fact that they were supervised by an office employee, Palukis and Rollins were not office clerical em- ployees but were plant clerical employees whose interests were more closely allied with those of production employees with whom they were in daily contact. Under well-established Board policy, Palukis and Rollins were includible in the production and maintenance unit and eligible to cast a ballot unless the parties in their stipulation had intended to exclude them. In its original opinion in this case, the Second Circuit held that the question of the unit placement and voting eligibility of Palukis and Rollins rested upon the con- struction of a contract, i.e., the Stipulation for Certification upon Consent Election, which it found to be ambiguous and therefore warranted resort to extrinsic evidence 8314E 2d at 633. 9It is conceded that Palukis was not a supervisory employee. She was also in charge of a nearby room where powder used in the production processes was stored but did not weigh the powder issued to production workers There is some question, which need not be re- solved, as to whether Rollins did that weighing work at the time of the election However, it i9 noted that Production Manager Walsh testified that at the preelection and post- election conferences, the Union's representative insisted on Rollins' eligibility to vote be- cause she weighed powder, although there is no testimony as to «hether he or any com- pany representative denied that Rollins actually performed that function THE JOCLIN MANUFACTURING COMPANY 783 to ascertain the intention of the parties . In so holding, the court, reciting the lan- guage of the stipulated unit as it appeared in the Board's brief and joint appendix as excluding "office, clerical and professional employees ," relied to some extent upon the presence of the comma between "office " and "clerical" as signifying an intention to exclude plant clericals. Being later apprised by the Board 's petition for rehearing that the presence of the comma as indicated above was purely a typographical error, the court modified its opinion 10 to state that Apart from the comma, we would still regard the stipulation as sufficiently ambiguous with respect to Rollins and Palukis to warrant the employer's re- quest to submit extrinsic evidence , although this will have to be more probative than if the stipulation had read as we were told . [Emphasis supplied.] The only testimony relating to discussions between the parties concerning the voting eligibility of Palukis and Rollins is that given by Edward B . Walsh, the Re- spondent's production manager, which I credit. He testified that at no time prior to the execution of the Stipulation for Certification upon Consent Election or the elec- tion itself were plant clericals or office clerical employees mentioned ; that at the request of the Board 's Regional Office, he prepared an eligibility list of employees, which omitted the names of Palukis and Rollins , for use at the election scheduled for July 7; that a few days before the election he discussed this list with Union Representative Stapleton and employee Alteri who later served as Union observer at the election ; that Stapleton raised the eligibility question only with respect to Rollins who he claimed was entitled to vote because she weighed powder used in production, a task which Palukis did not perform ; that at a postelection meeting of representa- tives of the Respondent and the Union conducted by a Board agent, the challenged ballot of Rollins was considered , with the Union again taking the limited position that her ballot should be counted because she weighed powder , and that he did not recall whether anything was said about Palukis' eligibility at that meeting,li al- though whether the Board agent made some reference to plant clericals Walsh further testified , without contradiction , that in 1960, before Rollins' employment, another representation election was held pursant to a Stipulation for Certification upon Consent Election between the Respondent and Union and that Palukis ' name was also omitted from the eligibility list without any objection being voiced by the Union and she did not vote. It has long been the Board 's settled policy to include plant clerical employees in production and maintenance units "unless the parties have agreed to exclude them as a class." 12 Clearly, the stipulation herein did not expressly provide for such exclusion. Indeed, as indicated above, neither at the time of the execution of the stipulation nor thereafter did the parties consider the subject of plant clericals as a class, although at the preelection and postelection discussions the Union insisted upon the inclusion of Rollins only . In these circumstances , and particularly in view of the fact that the only clerical employees specifically excluded from the stipulated unit were office clerical employees , and in view of the Board's well-established practice to include in a production and maintenance unit plant clericals in the absence of an agreement to exclude them as a class, I find insufficient probative evidence in the record of an intention on the part of the parties to the stipulation to exclude plant clerical employees Such a construction of the stipulation , in my opinion, best serves the policies of the Act to extend the voting franchise to all employees having mutual interests in the working conditions for which bargaining rights are sought by a labor organization.13 Accordingly, I find that the ballots cast by Palukis and Rollins were properly counted. RECOMMENDATION Upon the basis of the foregoing findings and the entire record in the case, I rec- ommend that the Board reaffirm its rulings with respect to the ballots of Isabelle Palukis and Rita Rollins, overrule the challenge to the ballot of John V. Rosania, and direct the Regional Director for the First Region to open and count Rosania's ballot and serve a revised tally of ballots upon the parties. 10 314 F. 2d at 635. 11 Palukis also gave uncontradicted testimony that, while the election was in progress, Walsh told her she had a right to vote or not to vote . However, it is not clear from her other testimony whether such remarks were directed to a group of employees or to her personally 12 Divco -Wayne Corporation, 122 NLRB 162, 163. 13 Cf Shoreline Enterprises of America, Inc v N L R B ., 262 F. 2d 933 , 944-946 (C A 5).