General American Transportation Corp.

120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General American Transportation Corp. and Oil, Chemical and Atomic Workers International Un- ion, AFL-CIO, Petitioner. Case 22-RC-4607 December 9, 1970 DECISION AND CERTIFICATION OF RESULTS BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed on March 20, 1970, an election by secret ballot was conducted on April 30, 1970, under the direction and supervision of the Regional Director for Region 22, among the employ- ees in a certain voting group. At the conclusion of the election, the parties were furnished with a tally of ballots, which showed that of approximately 35 eligible voters, 35 cast ballots, of which 17 were for, and 17 against, the Petitioner, and 1, cast by Mullan, was challenged. The challenged ballot is sufficient in number to affect the results of the election. In accordance with the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director conducted an investigation and, on June 5, 1970, issued and duly served upon the parties his Report on Challenged Ballot and Notice of Hearing to resolve the issues with respect to the challenged ballot. Pursuant to notice, a hearing was held on June 24, 1970, at which all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues. On August 6, 1970, the Hearing Officer issued his Report on Challenged Ballot, in which he recom- mended that the Board overrule the challenge, that the challenged ballot be opened and counted, and that a Revised Tally of Ballots be issued. Thereafter, the parties filed timely exceptions to the Hearing Officer's Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. i The Petitioner's exceptions are in large measure directed to the Heanng Officer's credibility findings . As the clear preponderance of the relevant evidence does not persuade us that the Hearing Officer's 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Based on the parties' stipulation, we find that the following employees constitute a group appropri- ate for inclusion in the existing production and maintenance unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office and plant clerical employees including dispatchers employed by the Employer at its Carteret, New Jersey location, excluding confiden- tial secretaries, professional employees, plant and project engineers, guards and supervisors as defined in the Act. 5. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudical error has been committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's Report, the exceptions thereto,' and the entire record in this case, and hereby adopts the Hearing Officer's findings and recommendations with regard to the challenged ballot, as modified herein. Mullan began working for the Employer in June 1963 on a permanent, full-time basis. In September 1963 he began attending Newark State College, Newark, New Jersey, to obtain a teaching degree in education. In December 1969 he asked the Employer for a leave of absence from February 2, 1970, to about March 26, 1970, in connection with his teaching program. The Employer granted Mullan's request on the mutually agreed condition that he return as a temporary employee. Mullan accordingly left work about February 2, returned about April 1, and a few days later informed the Employer that he would terminate his employment on August 15 as he planned to start teaching school full time in September. We find, in substantial agreement with the Hearing Officer's finding, that Mullan's leave of absence changed his status to that of a temporary employee; and that he informed the Employer, before the election, that he would pursue a full-time job as a school teacher a few months after the election, and would no longer work for the Employer. We disagree with the Hearing Officer's finding that Mullan is, in these circumstances, nevertheless eligible to vote. We note that Mullan was not working during the agreed eligibility period ending March 15, 1970, and was then no longer a permanent employee. Rather, he had agreed to return to work after March 15 only as a resolution of credibility issues was incorrect , we find insufficent basis for disturbing his credibility findings . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A 3) 187 NLRB No. 21 GENERAL AMERICAN TRANSPORTATION CORP. 121 temporary employee and for a limited period of about 3-1/2 months, because of the new teaching career on which he was about to embark. We further note that there is no evidence in the record that Mullan had any reasonable expectancy of future employment in the present voting group. Accordingly, we find that Mullan did not have a sufficient community of interest with the employees in this voting group, and we sustain the challenge to Mullan's ballot and shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION IT Is HEREBY CERTIFIED that a majority of the valid votes has not been cast for representation by Oil, Chemical and Atomic Workers International Union, AFL-CIO, and that said labor organization is not the exclusive representative of the employees within said voting group, within the meaning of Section 9(a) of the National Labor Relations Act, as amended.