SCM Corp.

SCM CORPORATION 515 SCM Corporation, Marchant Operations and Communications Workers of America, AFL-CIO, Petitioner. Case 11-RC-2754 February 13, 1969 DECISION AND DIRECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Pursuant to an Order and Direction of Second Election, an election by secret ballot was conducted on September 19, 1968, under the direction and supervision of the Regional Director for Region 11, among the employees in the unit agreed upon by the parties in the Stipulation for Certification upon Consent Election. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 1218 eligible voters, 1057 valid votes were cast, of which 530 were for, and 527 were against the Petitioner, and 18 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. Thereafter, both the Employer and Petitioner filed timely objections to conduct affecting the results of the election. On November 4, 1968. the Petitioner withdrew its objections. Pursuant to the provisions of the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation of the issues raised by the challenges and the Employer's objections and on November 12, 1968, issued and served upon the parties his Report on Challenges and Objections, in which he recommended that the challenges to ballots cast by 14 employees be sustained, that the challenges to the ballots cast by Peggy Hughes, Frances C. Keefe, W. G. Morris, and Maurice G. McWaters, be overruled and that their ballots be opened and counted. The Regional Director further recommended that the Employer's objections be overruled. Thereafter, the Employer filed timely exceptions to the Regional Director's recommendations, and the Petitioner filed a reply brief. 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 purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agreed, and we find, the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act: All hourly paid production and maintenance employees, including utility men, linemen, leadmen and probationary employees; but excluding all exempt and non-exempt salaried employees, professional employees, temporary employees, supervisory employees, and guards as defined in the Act. 5. The Board has considered the Regional Director's Report on Challenges and Objections, the Employer's exceptions thereto, and the Petitioner's reply brief, and hereby adopts the Regional Director's findings and recommendations.' As we have adopted the Regional Director's recommendation that the challenges to the ballots of Peggy Hughes, Frances C. Keefe, W. G. Morris, and Maurice G. McWaters, be overruled and as these ballots may affect the results of the election, we shall direct that the Regional Director open and count such ballots and cause to be served on the parties a revised tally of ballots. DIRECTION It is hereby directed that, as part of his investigation to ascertain the representative for purposes of collective bargaining with the Employer, the Regional Director for Region 11 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots cast by Peggy Hughes, Frances C. Keefe, W. G. Morris, and Maurice G. McWaters, and 'The exceptions, in our opinion, raise no material issue of fact or law which would warrant reversal of the Regional Director's recommendations Member Fanning would not adopt the Regional Director's finding that employee Nancy Boltin was in a nonunit classification at the time voter eligibility was determined . In his opinion, the evidence set forth in Exhibit K of the Employer's exceptions, which the Petitioner agrees is accurate, establishes that during the eligibility period, employee Boltin was on layoff status awaiting recall to a unit classification . Accordingly, on the basis of this evidence, and the agreement of the parties that Boltin was an eligible voter, he would overrule the challenge to her ballot and direct that it be counted. In all other respects , Member Fanning is in agreement with the result reached, herein Chairman McCulloch and Member Zagoria differ In their view, Exhibit K does not establish that dunng the eligibility period Boltin was awaiting recall to a unit classification . The facts show that on May 10, 1968, she was granted a leave of absence , to begin on June 14, 1968 and end on December 14, 1968, from the nonunit job of timekeeper, a salaried job which is excluded as such from the stipulated unit On August 12, 1968, however, she applied to return to her prior job, and was told it was not available but that an hourly-paid (unit) job could be offered . Boltin replied that she would consider the offer She was laid off (a clerical entry) on August 12, with the understanding that she could return to a unit job On September 9, 1968, she accepted a unit job_ Thus, during the eligibility period which ended August 23 , 1968, she was on layoff status from a nonunit job, and therefore ineligible to vote in the election . The fact that during the eligibility period, Boltin was weighing an offer to return to a unit job does not ipso facto make her a unit employee at the time. Essentially, her position is no different from an applicant who has an offer of employment but has not accepted it until after the eligibility period. Contrary to the Employer's contention, we find that further proceedings are not warranted 174 NLRB No. 89 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter prepare and cause to be served upon the count of the above-mentioned ballots, and the parties a revised tally of ballots including therein the appropriate certification.