Slumber Products Corp. & Sealy Southeast

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Slumber Products Corp. & Sealy Southeast and Local 282, United Furniture Workers of America, AFL-CIO, Petitioner. Case 26-RC-3393 August 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA Pursuant to a stipulation for certification upon consent election approved on February 26, 1969, an election by secret ballot was conducted on March 26, 1969, under the direction and supervision of the Regional Director for Region 26, among the employees in the stipulated unit described below. At the conclusion of the election, the Regional Director served upon the parties a tally of ballots which showed that, of approximately 222 eligible voters, 223 ballots had been cast, of which 104 were for, and 101 against the Petitioner. Seventeen ballots were challenged, and 1 ballot was found to be void. The challenged ballots are sufficient in number to affect the results of the election. Thereafter, the Employer and Petitioner filed timely objections. In accordance with National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation of the challenged ballots and the objections and, on May 9, 1969, issued and duly served upon the parties his Report on Challenges and Objections, in which he recommended that the Employer's objections be overruled in their entirety, that certain of the Petitioner's objections be overruled, and that the remaining objections raised issues which would best be resolved on the basis of record testimony, and further recommended that if the revised tally of ballots reveals that a majority of the valid votes has not been cast for the Union, the case be consolidated with Case 26-CA-3332. Thereafter, the Employer filed timely exceptions to the Regional Director's report. Subsequently, the Employer and the Petitioner entered into a stipulation, approved by the Regional Director for Region 26 on June 10, 1969, whereby the parties agreed that in the event a revised tally of ballots should reveal that the Petitioner did not receive a majority of valid votes cast, the election held on March 26, 1969, be set aside and a new election be directed by the Board. The parties further stipulated and agreed that in the event a revised tally showed that the Petitioner did receive a majority of valid votes cast in the election, the Petitioner be certified as the exclusive representative of the Employer's employees for the purposes of collective bargaining. 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 employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties, we find, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All production and maintenance employees and truckdrivers employed at the Employer's plant in Memphis, Tennessee. Excluded: All office clerical employees, watchmen, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Director's Report and the Employer's exceptions, and finds merit in the Employer's exceptions to the Regional Director's recommendation that the challenges to the ballots of William Garvins, Lawson W. Danielson, and Malvin Massey be sustained.' The Regional Director recommended that the challenge to the ballot of employee William Garvins be sustained on the ground that Garvins, although working within the unit as a regular production employee, was hired for a limited time to liquidate a social security overpayment, and was therefore a pensioner under the Social Security Act who intends to work just long enough in 1969 to qualify for maximum social security benefits. In Holiday Inns of America, Inc., 176 NLRB No. 124, the Board reconsidered and revised its policy concerning the voting eligibility of social security annuitants. As Garvins was employed as a regular production employee at times material herein, we shall, in accordance with our decision in the cited case, direct that Garvins' ballot be opened and counted by the Regional Director.' 'In the absence of exceptions, we adopt pro forma the Regional Director's recommendations that the challenges to the ballots of Ray Beale, Alvin Blade, Curlee Lee Smith, Sally Ann Mitchell, James Holloway, and Rosevelt Bowers be sustained , and that the challenges to the ballots of Gladys Klaus, Evelyn Hillman , John Humphrey, Sammie Shaffer, Roosevelt Owens, and Gladys Graves be overruled, and that the Employer's objections, as well as Petitioner's objections 1(b), (e), (f), and (g) be overruled. We further find that the Employer's exceptions to the Regional Director's recommendation that the challenges to the ballots of Melvin Edwards and Walter Hamer be sustained raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations. 'Member Jenkins agrees that Garvins ' ballot should be opened and counted , not for the reasons given in Holiday Inns. but because Garvins' intention to retire at a future date does not, under settled principles of law, render him ineligible to vote in the present election. 178 NLRB No. 39 SLUMBER PRODUCTS CORP. & SEALY SOUTHEAST 225 The Regional Director sustained the challenges to the ballots of Lawson W. Danielson and Malvin Massey on the grounds that they are accorded extra benefits and consequently lack a community of interest with, and enjoy a "special status" which warrants their exclusion from the unit. Both Danielson, a maintenance electrician, and Massey, a sewing machine mechanic, participate in a more liberal hospitalization and life insurance program that is normally reserved for supervisors, are permitted to eat in the "executive cafeteria", and park their cars in the area normally reserved for supervisory and management personnel. However, as found by the Regional Director, there is no evidence that Danielson or Massey possess any indicia of supervisory authority, and they therefore cannot be considered supervisors. Moreover, both are on the production payroll, share common supervision with unit employees with whom they are in constant contact, work the same hours, are paid by the same method, and receive the same vacation, holiday, and profit sharing benefits. We find Danielson and Massey are eligible to vote in the election as employees in the agreed appropriate unit. Accordingly, as we have overruled the challenged ballots of employees William Garvins, Lawson W. Danielson, Malvin Massey, Gladys Klaus, Evelyn Hillman, John Humphrey, Sammie Shaffer, Roosevelt Owens, and Gladys Graves, we shall direct that the Regional Director open and count these ballots, issue a revised tally of ballots, and proceed in accordance with the June 10, 1969, stipulation. ORDER It is hereby ordered that the challenges to the ballots of William Garvins, Lawson W. Danielson, Malvin Massey, Gladys Klaus, Evelyn Hillman, John Humphrey, Sammie Shaffer, Roosevelt Owens, and Gladys Graves be, and they hereby are, overruled. It is directed that as part of the investigation to ascertain representatives for the purposes of collective bargaining among the employees of Slumber Products Corp. & Sealy Southeast, at its Memphis, Tennessee, plant in an appropriate and stipulated unit, the Regional Director for Region 26 shall, pursuant to National Labor Relations Board Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision open and count the ballots designated in the first paragraph of this Order and, thereafter, prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said challenged ballots. It is further directed that in the event the revised tally of ballots shows the Petitioner received a majority of the valid votes cast, the Regional Director shall issue a Certification of Representative to the Petitioner. It is further directed that should the revised tally of ballots show that the Petitioner has not received a majority of the valid ballots cast, the election conducted on March 26, 1969, shall be set aside, in accordance with the stipulation of the parties, and a second election by secret ballot shall be conducted among the employees in the appropriate unit. The Regional Director for Region 26 shall direct and supervise the election, subject to National Labor Relations Board Rules and Regulations. Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date of the issuance of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military service of the United States may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement thereof, and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been permanently replaced.' Those eligible shall vote whether or not they desire to be represented for collective-bargaining purposes by Local 282, United Furniture Workers of America, AFL-CIO. 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear Inc, 156 NLRB 1236; N.L.R.B v. Wyman-Gordon Company, 394 U.S. 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 26 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.