Brunswick Corp.

BURKE DIV. OF BRUNSWICK CORP. Burke Division of Brunswick Corporation and Shop, Mill and Industrial Local Union 2848, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Petitioner. Case 16-RC-4981 June 26, 1969 DECISION AND DIRECTION BY MEMBERS FANNING, JENKINS, AND ZAGORIA Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on September 27, 1968, under the direction and supervision of the Regional Director for Region 16, among the employees in the unit described below. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 51 eligible voters, 52 cast ballots, of which 26 were for the Petitioner, 25 were against the Petitioner, and 1 was challenged. The challenged ballot is sufficient in number to affect the results of the election. No objections to conduct affecting the results of the election were filed by either party. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation and, on November 5, 1968, issued and duly served upon the parties his report on challenged ballot, in which he recommended that the challenge to the ballot of Carl Shelton be sustained, and that the Petitioner be certified as the collective-bargaining representative of the employees of the Employer in the appropriate unit. Thereafter, the Employer filed timely exceptions to the Regional Director's report and a supporting brief. On January 30, 1969, the Board issued an order remanding proceeding to Regional Director for hearing for the purpose of securing record evidence to resolve the issues raised by the Employer's exceptions, in which the Employer contended, inter alia, that the transfer of Shelton did not affect his community of interest with employees in the appropriate unit in view of the temporary nature of his transfer. Pursuant to notice, a hearing was held on February 20, 1969, before Hearing Officer T. Lowry Whittaker. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. In his report, the Hearing Officer recommended that the Board sustain the challenge to the ballot of Shelton, and that the Petitioner be certified as the collective-bargaining representative. Thereafter, the Employer filed timely exceptions to the Hearing Officer's Report and a supporting brief, and the Petitioner filed a 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. 67 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 Union 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)(l) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All production employees, including shipping and receiving employees while employed at the Employer's plants located at 5140 N. Westmoreland and 125 Cole Street, Dallas, Texas. Excluded: All other employees, office clerical employees, guards, watchmen, professional employees and supervisors as defined in the Act as amended. 5. The Board has considered the report of Hearing Officer upon challenged ballot, the Employer's exceptions and brief, the Petitioner's brief, and the entire record in this case, and makes the following findings. The Hearing Officer's report finds that the employee in dispute, Carl Shelton, was a clerical employee in the material control department on the eligibility date and on the date of the election, and was therefore excluded from the appropriate unit under the phrase used in the unit description which excluded "all other employees." For the reasons set forth below, we find merit in the Employer's exceptions. Shelton was hired into the wood finishing shop, a part of the appropriate unit, on August 6. On August 13, at the Employer's request, he transferred to the material control department, where he "was to help catch up on past-due orders." The supervisors of both of these departments testified that Shelton was told at the time of his transfer that it would be temporary. In addition, the Employer introduced personnel action forms regarding this transfer, which indicated that the transfer was temporary. Shelton testified that he did not recall being told that his transfer was temporary. During the time he worked in the material control department, Shelton was primarily involved in work designed to eliminate the past-due orders, which was the stated reason for his transfer. In addition, he also did a few odd jobs which required work within the unit. On November 14, at the time of his transfer from the material control department back to a job within the appropriate unit, although not to the job which he had performed prior to his transfer, the number of past-due orders had been substantially reduced. No testimony was introduced 177 NLRB No. 2 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to controvert the testimony that Shelton was told the transfer would be temporary, nor was there evidence to indicate that the personnel action forms were in error. In view of the above, we find that on the eligibility date and the date of the election, Carl Shelton was in the appropriate unit and was eligible to vote in the election, since his assignment to the material control department was temporary, and it was reasonably expected that he would resume full-time duties in the unit. Accordingly, we shall direct that the Regional Director open and count the challenged ballot of Carl Shelton, and prepare and cause to be served upon the parties a revised tally of ballots. DIRECTION It is hereby directed that the Regional Director for Region 16 shall, pursuant to the Rules and Regulations of the Board, within 10 days from the date of this Decision, open and count the ballot of Carl Shelton, and prepare and cause to be served upon the parties a revised tally of ballots , including therein the count of the above-mentioned ballot, and issue the appropriate certification. j