Allstate Mfg., Co.

ALLSTATE MANUFCTURING CO. Allstate Manufacturing Co., Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Petitioner. Case 25 RC-6711 May 17, 1978 DECISION AND ORDER DIRECTING REGIONAL DIRECTOR TO OPEN AND COUNT CHALLENGED BALLOT BY CHAIRMAN FANNING AND Mi MBERS PENIi LO0 AND TRU ESDALE Pursuant to authority' granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended. a three- member panel has considered the determinative chal- lenge in an election held October 31, 1977,1 and the Hearing Officer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs and hereby adopts the Hearing Officer's findings and recommendations ex- cept as modified below.2 The Hearing Officer recommended that the Employer's challenge to the ballot of Thelma Gras- sic, a probationary employee who had been laid off prior to the election, be overruled and that her ballot be opened and counted. His recommendation was based on his conclusion that Grassic had a reason- able expectation of recall at the time of the election. We agree with the Hearing Officer's recommenda- tion, but reach this result relying solely on the follow- ing: Allstate Manufacturing Co., Inc. (hereinafter the Employer), is engaged in the business of recondition- ing used vending machines at its Terre Haute, Indi- ana, facility. On August 17, 1977,3 Thelma Grassic was hired by the Employer. At the end of August or beginning of September, Plant Manager Harold Fox met with five probationary employees, including tThe election was conducted pursuant to a Stipulation for ('ernlfilcallon iUpon (Consent Flection. The tall, sas 35 for. and 3s againsl. the Petlioner; there was I challenged ballot. 2 The Emploxer asserts that the Hearing Officer's resolution if credhilih- ts, findings of fact. and conclusions of lass are the result of bias After a careful examination of the entire record. we are satisfied that this allegallon is without meri. I here is no hasis for finding that bias and partialiy existed merely because the Hearing Officer resolved important factual conflihts in f.avor of the Petitioner's s mnesses. As the Supreme (Court stalted in '\ 1. R R v. Pitrshurgh Steam.lhrp ('omprunrn 337 tS. 656. 659 (1949) "[ I' otal rejec- tion of an opposed siev, cannot of itself impugn the irtegrial or coimpetence of it trier of fact." Furthermore, it is the Board's established pohlcis not to overrule a Hearing Officer's resolutions with respect to credihilils unless the clear preponderlnce of all of the relevant esidence convinces us that the resolutions are incorrect. The ('oca-('/hLi Bottling ip ( ronitar ',1 ol elhlrpl. 132 Nl RB 481. 483 (1961): Srrerch-lit' ( ,} 118 NL RB 1359. 131 (1957) We have carefull) examined the record and find no hasis for reversing his find- All dates hereinaifier are for the sear 1977 unless olher lsie noted Grassic, and informed them that, due to a decrease in work resulting from a decline in the shipment of machines to be reconditioned from a major custom- er, the' were going to be "permanently laid off" as of September 1. At this meeting, however, at least one employee, Kevin Pine, was told in the presence of the other employees to keep in contact with the plant. At this time, a notice was also posted on the bulletin board indicating that the probationary employees af- fected would be terminated. Consistent with its statement to Pine, approxi- mately 3 weeks later. the Employer contacted two of the above employees, Pine and Mike McCoy, and offered them work. McCoy returned on September 28, while Pine returned on October 24 after failing to hear affirmatively about a job elsewhere. While Mc- Cov completed an application for employment upon his return, Pine did not and reported directly to the line and began working. On October 27, a few days after Pine returned and prior to the election of Octo- ber 31. Grassic called Plant Manager Fox, and in answer to her request for work was told that there was "nothing available." Subsequent to the election, Pine was called to the office and was informed for the first time that he had been a new hire on October 24. The facts, as set out above. support the Hearing Officer's conclusion that Grassic was eligible to vote. As the Hearing Officer correctly stated, the Board has found that the reasonableness of a laid-off employee's expectation of recall is dependent upon objective factors, including the past experience of the employer, the employer's future plans, and the cir- cumstances of the layoff. including what the employ- ees were told as to the likelihood of recall.4 The Employer asserts that it does not recall laid- off workers and that Pine and McCoy were hired and not recalled. Further, it alleges that the two above-named employees were rehired based on their exceptional and meritorious work records, in accor- dance with the Employer's past practice. The Em- ployer argues that, as Grassic had a poor work rec- ord, she would never have been rehired and therefore could not have had such an expectancy. In the instant case the Employer had no prior sig- nificant lay off which could be used as a guide to determine its policy regarding the recall of employ- ees. However. in accordance with the Hearing Officer's finding, the credited evidence clearly shows that Pine and McCoy were recalled and not rehired after their "permanent" layoff. The Employer's "new hire" position appears to have been one arrived at after the election and its challenge to Grassic's ballot. Further, contrary to its repeated claim that the supe- 4 i) I Itr.l ( O fh NI RB IllI 13 119713). 236 NLRB No. 20 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rior work performances of Pine and McCoy account- ed for their reemployment, there is no credible evi- dence in the record supporting such an assertion, or that Grassic's performance was poor. There were, in fact, no references to work performance in any of the three employees' folders. Moreover, McCoy's em- ployment record was filled with notices for repeated absences and tardiness. Further, we are not convinced that the decline in the orders from one of the Employer's major custom- ers, while economic justification for the layoff, was permanent at the time of the election. In addition, a sampling of the Employer's billing records, the only evidence offered, does not provide sufficient support for the Employer's position of an overall business decline.5 Finally, regarding the circumstances surrounding the layoff, as stated above, at least one employee had been told by Plant Manager Fox to keep in touch with the Company subsequent to being laid off. The ' D. H. Farms, supra at 112. fact that two of the five employees laid off on Sep- tember I were contacted and asked to return to work within a month thereafter lends credence to Pine's assertion that this comment was in fact directed to all five of the employees. It also undermines the Employer's characterization of the layoff as a "per- manent" one. Accordingly, based on the above reasons, we find that at the time of the election Thelma Grassic had a reasonable expectation of reemployment. We shall therefore direct the Regional Director to open and count her ballot, to prepare a revised tally of ballots, and to issue the appropriate certification. ORDER It is hereby ordered that the Regional Director for Region 25 shall, within 10 days from the date of this Decision, open and count the ballot of Thelma Gras- sic and thereafter prepare and serve on the parties a revised tally of ballots, including therein the count of said ballot, and take such further action as may be necessary in accordance with this Decision. 156