ESB, Inc.

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exide Alkaline Battery Division of ESB, Inc. and In- ternational Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner. Case 11-RC-2707 October 20, 1972 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 11 of the National Labor Relations Board, a second election by secret ballot was conducted on August 19, 1970, under the direction and supervision of the Regional Director, among the employees in the stipulated appropriate unit. Upon the conclusion of the second election, a tally of ballots was furnished the parties in accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended. The tally of ballots showed that of approximately 312 eligible voters, 125 cast ballots for, and 141 cast ballots against, the Petitioner. Forty-six ballots were challenged. Inasmuch as the challenged ballots were suffi- cient in number to affect the results of the election, the Regional Director conducted an investigation of the challenges and, thereafter, on December 1, 1970, is- sued and served on the parties his Report on Chal- lenged Ballots. In his report the Regional Director concluded that the 38 voters challenged by the Em- ployer for the reason that they had been permanently laid off prior to the election had been laid off lawfully and not in violation of the Act, and accordingly rec- ommended that the challenges to their ballots be sus- tained. He further concluded that the remaining eight challenges were not determinative and made no rec- ommendation with respect to them. On December 14, 1970, the Petitioner filed timely exceptions to the Regional Director's report with re- spect to the challenged ballots. The Petitioner argued that the Regional Director gave no consideration to its contention that the layoffs were temporary, and requested a hearing to allow it to show that the layoffs were not permanent and the challenged employees were eligible to vote. On April 13, 1971, the Board issued and served on the parties an Order Directing Hearing to resolve the issues raised with respect to the challenged ballots and remanded the matter to the Regional Director for the purpose of conducting a hearing. On May 25 and 26, 1971, a hearing was held before Hearing Officer Stephen D. Hise in which all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence pertinent to the issues. On June 24, 1971, the Hearing Officer issued his Report and Rec- ommendations on Challenged Ballots, in which he ruled that the employees were permanently laid off and had no expectancy of recall during the foreseea- ble future. Thereafter, the Petitioner filed timely ex- ceptions to the Hearing Officer's report, a brief, and a Motion To Reopen the Record and Hold a Further Hearing for the Purpose of Receiving Newly Discov- ered Evidence and Evidence Improperly Excluded. In its brief and motion, the Petitioner contends that the Employer unlawfully laid off the challenged employees on the basis of race. The Petitioner submits that the employees' layoffs violated the Civil Rights Act of 1866 1 and that a Federal court suit has been filed so alleging and requesting that the court order the Employer to reinstate the laid-off employees with backpay. The Petitioner also states that eight of the employees were laid off on the basis of race in viola- tion of Title VII of the Civil Rights Act of 1964,2 and have filed charges with the Equal Employment Op- portunity Commission so alleging. In addition, the Petitioner filed a charge in Case 11-CA-4678 alleging that the racial discrimination practiced by the Em- ployer in the layoffs constitutes an unfair labor prac- tice under United Packinghouse, Food and Allied Workers International Union, AFL-CIO [Farmers Co- operative Compress] v. N.L.R.B.3 The Petitioner re- quests that the Board hold the instant case in abeyance until the legality of the layoffs is "finally adjudicated" in one of the foregoing proceedings. It is the Petitioner's contention that if the layoffs are finally adjudicated to be illegal, either under the Civil Rights Act of 1866, or under the Civil Rights Act of 1964, or under the National Labor Relations Act, as amended, the ballots of the employees should be counted and the challenges thereto overruled. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hear- ing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed .4 i 42 U.S C sec 1981 2 42 U S C sec 2000e. 3 416 F.2d 1126, 1134-38 (CAD C ), cert denied 396 U.S. 903 (1969) ° We find no error in the Hearing Officer's ruling which excluded the Petitioner's proffered evidence tending to prove the existence of unfair labor practices, because this evidence is irrelevant to the present proceeding. We note that the instant hearing is not concerned with any allegation of unfair labor practices See Texas Meat Packers, Inc, 130 NLRB 279 Accordingly, 199 NLRB No. 134 EXIDE ALKALINE BATTERY DIV. OF ESB Upon the entire record in this case, the Board finds that: 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. 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. 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: All production and maintenance employees at the Employer's Sumter, South Carolina, plant, excluding all office clerical employees, guards, supervisors and others who may be excluded by the Act. 5. The Board has considered the Hearing Officer's report, the exceptions, and the brief, and, on the basis of the record as it now exists, we deny the Petitioner's request that we hold the instant case in abeyance.5 However, we shall entertain a motion for reconsideration of this Decision upon a showing by the Petitioner that one of its proceedings has been finally adjudicated in its favor.6 In addition, we direct we deny the Petitioner's motion insofar as it requests a further hearing to adduce the proffered evidence 5 We deny the Petitioner's motion insofar as it requests the Board to reopen the record for the purpose of receiving newly discovered evidence , since it involves alleged unlawful racial discrimination 899 the Regional Director for Region 11 to hold the chal- lenged ballots in his possession until such time. Ac- cordingly, we hereby adopt the Hearing Officer's findings and recommendations and sustain the chal- lenges to the ballots of M. Willis, C. Reid, D. Lucas, S. T. Nelson, H. P. Martin, C. H. Williams, D. H. Andrews, S. C. Johnson, A. Crosby, C. R. Reidel, M. Conyers, M. C. Blanding, C. R. Gibson, E. L. Holmes, L. H. Johnson, N. McFadden, J. H. Montgomery, J. J. Kinard, H. L. Wilson, R. Sinkler, D. C. Richardson, M. Cook, R. Charles, P. Montgomery, C. Swent, A. B. Thomas, E. Washington, J. Mashore, R. E. Peterson, C. Hood, M. E. Roy, M. A. Sinkler, D. J. Nelson, E. Alston, L. E. Walter, P. Cooper, P. C. Haley, and R. Solomon. Since the eight remaining challenged ballots are no longer sufficient in number to affect the results of the election, we find it unnecessary to make any disposition of them. As the Petitioner has failed to receive a majority of the valid ballots cast, we 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 International Union of Electrical, Radio and Machine Workers, AFL-CIO, and that said Union is not the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. 6 With respect to the charge filed by Petitioner in Case 11-CA-4678, on May 30, 1972, the General Counsel, on appeal, sustained the Regional Director's dismissal of that charge